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PURSUING JUSTICEin the 21st CENTURY

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Arbitration

8 Why Statutes of Limitations Are Not Applicable in Kentucky ArbitrationsBy Charles C. Mihalek and Steven M. McCauley

14 Why Kentucky’s Statutes of Limitations Should Apply to Claims Raised in ArbitrationBy Janet P. Jakubowicz and J. Curtis McCubbin

19 The Scope of the Power of Courts to Enforce Agreements to Arbitrate in KentuckyBy Walter L. Sales

24 Is a Broad Arbitration Clause Still Effective after Granite Rock?By Richard H.C. Clay and Stephen J. Mattingly

28 Lincoln 202By Donald K. Kazee

This issue of the Kentucky BarAssociation’s Bench & Bar was published in the month of March.

Communications & Publications CommitteeFrances E. Catron, Chair, FrankfortPaul Alley, FlorenceElizabeth M. Bass, LexingtonSandra A. Bolin, BereaMichael A. Breen, Bowling GreenChristopher S. Burnside, LouisvilleDavid C. Condon, OwensboroAshlee D. Coomer, Petersburg James P. Dady, BellevueAlexander F. Edmondson, CovingtonJudith D. Fischer, LouisvilleCathy W. Franck, CrestwoodP. Franklin Heaberlin, PrestonsburgSheryl E. Heeter, NewportJudith B. Hoge, LouisvilleEdna M. Lowery, FrankfortChristopher T. McDavid, LouisvilleTheodore T. Myre, Jr., LouisvilleEileen M. O’Brien, LexingtonBrian K. Pack, GlasgowRichard M. Rawdon, Jr., GeorgetownE.P. Barlow Ropp, GlasgowR. Kelley Rosenbaum, LexingtonCandace J. Smith, CovingtonJeffrey R. Soukup, LexingtonE. Frederick Straub, Jr., PaducahGerald R. Toner, LouisvilleSadhna True, LexingtonKatherine Kerns Vesely, LouisvilleMichele M. Whittington, Frankfort

PublisherJohn D. Meyers

EditorFrances E. Catron

Managing EditorShannon H. Roberts

LayoutDavid Kaplan • [email protected]

The Bench & Bar (ISSN-1521-6497) ispublished bi-monthly by the Kentucky BarAssociation, 514 West Main Street, Frankfort,KY 40601-1812. Periodicals Postage paid atFrankfort, KY and additional mailing offices.

All manuscripts for publication should besent to the Managing Editor. Permission isgranted for reproduction with credit.Publication of any article or statement is notto be deemed an endorsement of the viewsexpressed therein by the Kentucky BarAssociation.

Subscription Price: $20 per year. Memberssubscription is included in annual dues and isnot less than 50% of the lowest subscriptionprice paid by subscribers. For more informa-tion, call 502-564-3795.

POSTMASTERSend address changes to:Bench & Bar514 West Main StreetFrankfort, KY 40601-1812

C O N T E N T S

Columns

3 President’s Page By D. Scott Furkin

5 YLS By Nathan Billings

36 Shop Talk By Michael Losavio

Cover created by Ben Swartz. Kentucky Bar Association’s 2011 Annual Convention Logo designed by IDA Branding.

Items of Interest4 2011 Kentucky Bar Association’s Annual Convention Spotlight

32 Judicial Conduct Commission

34 The Bench & Bar Thanks Del O’Roark

34 2011 Student Writing Competition Call for Entries

35 Kentucky Bar Foundation/IOLTA Thank You to Directors and Trustees

39 Amendment and Deletion to the Regulations of the Attorneys’ Advertising Commission

40 Kentucky Bar News

44 Law Day 2011 Information

44 Notice of Mandatory Electronic Filing of Sealed Documents

46 Who, What, When & Where

56 CLE

Lost in the shuffle?Set yourself apart from the others by advertising in the Kentucky Legal Directory. Among all the legal directorieson the market, the Blue Book stands out, truly the most user friendly hand held device on your bookshelf.

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The Kentucky Legal DirectoryOfficial Directory of the Kentucky Bar Association.

Lost in the shuffle?Set yourself apart from the others by advertising in the Kentucky Legal Directory. Among all the legal directorieson the market, the Blue Book stands out, truly the most user friendly hand held device on your bookshelf.

Stand out for a change!* Smaller size & distinctive blue cover make our book instantly recognizable* Each volume covers a single state, and is sold individually. Purchase only the ones that you need. * Biographical listings appear in single-column page format,with larger type to make them easier to read.* Color coded pages and tab dividers make it easier to movebetween sections

The Kentucky Legal DirectoryOfficial Directory of the Kentucky Bar Association.

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March 2011 Bench & Bar 3

PRESIDENT’S PAGE

By D. Scott Furkin

In the September 2010 issue of Bench& Bar, KBA President Bruce K.

Davis lamented that civic education hasall but disappeared from most publicschool curricula. Indeed, courses ingovernment, political science andcitizenship have taken a back seat tothose in English, math and science asteachers struggle to boost students’scores on standardized proficiency teststhat are the barometer of moderneducational success.

As a result, an entire generation ofU.S. citizens is coming of age withouteven a basic understanding that our stateand federal governments are dividedinto three coequal branches, each withseparate and independent powers andareas of responsibility. Sadly, anincreasing number of Kentuckians failto grasp the important role the judicial

branch plays in administering justiceand safeguarding our liberties. Manyknow little more about lawyers andjudges than the unrealistic depictionspresented in television shows andcommercials.

To help fill this critical knowledgegap, for more than a decade theLouisville Bar Association has conducted“Law Day in School” in which volunteerattorneys teach middle school studentsabout the court system, the legalprofession and the Bill of Rights, amongother topics. To date, LBA membershave visited more than 500 classrooms inthe Jefferson County Public Schools.Three dozen additional visits will takeplace during the current school year.

Spearheaded by an attorney who is aformer teacher, “Law Day in School” isa program of the LBA’s Public ServiceCommittee. Curriculum materials weredeveloped by a professional legal

educator and are periodically reviewedto make sure they are accurate andtimely. They include lesson plansdesigned to give students anappreciation for the rule of law,individual rights and the protectionsafforded to all citizens by the U.S.Constitution. Students are alsochallenged to take seriously theirresponsibilities as future voters, jurors,litigants or perhaps even lawyers.

Teachers have consistently praisedthe quality of the instruction whichincorporates handouts, video clips andinteractive exercises into attorney-ledpresentations. One teacher wrote that“(t)his has been a great jumping-offpoint that has continued into wonderfulclass discussions and other learningactivities.” As a leader of severalclasses, I can personally attest to thestudents’ enthusiastic response.

The LBA is proud to contribute to thecivic education of students in JeffersonCounty. We are happy to share ourcurriculum materials with attorneyswishing to institute the “Law Day inSchool” program in other Kentuckycounties.

Editor’s Note: At the invitation of KBA President Bruce K. Davis, this issue’s “President’s Page” is authored by D. ScottFurkin, executive director of the Louisville Bar Association (LBA), who discusses the LBA “Law Day in School” program formiddle school students in Jefferson County Public Schools. In the September 2010 issue of the Bench & Bar, Mr. Davisencouraged readers to share their stories of quality volunteer programs aimed at increasing civic education in Kentuckyschools. We thank Mr. Furkin for providing information regarding this successful effort.

LOUISVILLE BAR’S PROGRAM TEACHES

STUDENTS ABOUT LAW, COURTS

The Louisville Bar Association’s “Law Day in School” program offerscurriculum materials and lesson plans geared to middle school students on thefollowing topics:

How Courts Work – Educates students about the functions of state andfederal courts and the role of judges in the justice system

What Lawyers Do – Educates students about the role of lawyers in thejustice system and what it takes to become a lawyer

Students and the Bill of Rights – Educates students about the U.S.Constitution and application of the Bill of Rights to their daily lives

For more information, contact Cindy Robinson, LBA Public Service Director, at(502) 583-5314 or [email protected].

D. ScottFurkin, a 1982graduate of theUniversity ofLouisville LouisD. BrandeisSchool of Law, isan attorney andexecutive directorof the Louisville Bar Association.

4 Bench & Bar March 2011

Mark your calendars to join theKentucky Bar Association for its

2011 Annual Convention at theLexington Convention Center,Wednesday, June 15, through Friday,June 17! With a convention theme of“Pursuing Justice in the 21st Century,”we’ll take a look back at legal issues ofrelevance during the first decade of thenew millennium, and a look ahead tonew, emerging topics through a widevariety of CLE programming ofinterest to practitioners across theCommonwealth.

Under the direction of KBAConvention Planning Committee Chair

Mindy Barfield and CLE ProgramCommittee Chair Anne Chesnut, threeexcellent featured speakers have beensecured for the 2011 convention. TheKBA is excited to announce thatJennifer Thompson and Ronald Cotton,two of the authors from The New YorkTimes Best Seller Picking Cotton: OurMemoir of Justice and Redemption, willshare their inspiring story on theconvention’s opening day.

According to the book’s website, “ ...Jennifer and Ronald offer anunprecedented first-person glimpse intowhat happens when the system failsboth the victim and the accused. Pacedlike the most riveting of thrillers andpacked with page-turning twists andturns, this unforgettable book challengesour ideas of memory and judgmentwhile demonstrating the profoundnature of human grace and the healingpower of forgiveness.” For moreinformation on the authors and theirpublication, visitwww.pickingcottonbook.com.

On Thursday, June 16, the KBAConvention will feature JonathanTurley, a nationally recognized legalscholar whose articles appear regularlyin publications such as The New YorkTimes, The Washington Post, USAToday, and The Wall Street Journal.Turley also appears often on all of themajor television networks, includingsuch shows as “Meet The Press,” “ABCThis Week,” “Face The Nation,” and“Fox Sunday.” He is also a frequentwitness before the U.S. House ofRepresentatives and Senate on

constitutional and statutory issues aswell as tort reform litigation.

Professor Turley hasserved as counsel insome of the mostnotable cases in the lasttwo decades,representingwhistleblowers,military personnel, anda wide range of otherclients. He has also served as counselin a variety of national security cases, aswell as a consultant on homelandsecurity and constitutional issues.

On Friday, the convention’s closingday, the KBA is pleased to present ErinBrockovich, a consumer advocate whosework to uncover the poisoning of thewater supply in a small California townbecame the subject of the 2000 film“Erin Brockovich” starring Julia Roberts.

While organizing papers as a fileclerk in a Californialaw firm, Brockovichdiscovered medicalrecords that led to aninvestigation of PacificGas & Electric, autility accused ofleaking toxicChromium 6 into thegroundwater. In 1997, as a result of alawsuit spear-headed by Brockovichand the late attorney Ed Masry onbehalf of more than 600 Hinkley, Calif.,residents, the utility giant paid a $333million settlement. The lawsuit wasdramatized in the 2000 film "ErinBrockovich," which earned JuliaRoberts an Academy Award as BestActress for her portrayal of Brockovich.

Since that time, Brockovich has usedher notoriety to spread positivemessages of personal empowermentand to encourage others to stand up andmake a difference. As president ofBrockovich Research & Consulting, sheis currently involved in numerousenvironmental projects worldwide.

Please make plans now to attend the2011 KBA Annual Convention for whatpromises to be an extraordinary andeducational convention. Registrationinformation will be available in earlyApril at the KBA website,www.kybar.org.

PLAN NOW ON ATTENDING THE 2011KBA ANNUAL CONVENTION!

Ronald Cotton and Jennifer Thompson

Jonathan Turley

Erin Brockovich


Delegation -

“We accomplish all that we do throughdelegation — either to time or to otherpeople.” – Steven Covey

Partner: Jim, I know it is 3 p.m.Friday afternoon, but I need a memoon the discoverability of anattorney’s communications with anexpert in the Smith case.

Associate: Sir, I have not done anywork on that case before. Is that themedical malpractice case?

Partner: No. You know, the Smithcase is the one about constructiondefect in the slab. Oh, and I need itby 9 a.m. on Monday. You can findthe file on Mary’s desk. I think theother side’s motion is in it. Thanks.[Partner leaves]

[Monday morning meeting, afterPartner reviews the memo]

Partner: I wanted a brief on thisissue! And, why does it not refer tothe actual communications betweenour expert and the client? They werein the file – didn’t you read them?Oh, and I talked to the other side onFriday evening, and we don’t have tofile this until Wednesday – when canyou get me a new draft?

Many of us have been on thereceiving end of a “delegation” likethis in the past. A partner, seniorattorney, committee chair, or managerassigns a project to us with littleexplanation of the context of theassignment, exactly what is expected,what the actual objective or goal is,

and in what format the finished productshould be.

Unfortunately, as leaders, we far toooften assign projects the same way. Inthe daily machinations of practicing acase or in our community involvement,we forget that we acquire a vast amountof knowledge about matters, and thatothers in our organizations do notpossess the same amount ofinformation. As a result, weineffectively “delegate” tasks to others.The costs for such poor delegationinclude: low morale, burnout,unacceptable work product, duplicativework and rework, misallocation ofpersonal and personnel resources,frustration, anxiety, increased clientbills, lower profitability, damage tofirm/organization image, and damage tofirm/organizational health.

Although defined in a variety ofways, at its core, delegation is thepractice of turning over work-relatedtasks and/or authority to employees orsubordinates, and it is one of thehardest skills for a leader to master.Reasons for poor delegation include:“not enough time,” lack of trust insubordinates, unwillingness tosurrender control or authority to others,inability to recognize the value ornecessity of delegation, poorcommunication skills, or lack ofunderstanding how to effectively

delegate. This article addresses thissome of these barriers.

Despite situations like the onedescribed above, effective delegationcan be learned. In order to effectivelydelegate, you must have an objectivegrasp of your own abilities, respon-sibilities and communication skills, andwhat can and cannot be delegated toothers.

We all know that our daily tasksaccumulate quickly. It is critical that weprioritize those tasks that we must doand those that can be delegated toothers. Thus, the first step to effectivedelegation is spending time daily toprioritize our tasks. Creating two listscan be incredibly useful: a running listfor all tasks, and a second for tasks thatmust get done that day. Spend fiveminutes of your day (either the first orlast five minutes at the office) updatingyour lists. (I prefer the end of the day,so that when I come in the office thenext day, my focus for the day isalready established.) Your “daily” tasklist should identify 5-10 items in orderof importance. Anything that must beaccomplished that day should be at thetop. As you draft your lists, candidly askyourself: “Is this something that I mustdo, or can someone else adequatelyaccomplish some or all of this task?”

As you complete items, mark themoff. Rarely, however, do we complete

By Nathan Billings, Chair, KBA Young Lawyers Section

During late April and the monthof May, attorney volunteers willmake one-hour presentations inhigh school classrooms across the Commonwealth,providing students timely, relevantinformation on reaching the age ofmajority in Kentucky. Topicscovered include employment law,marriage and divorce, buying anddriving a vehicle, money andcredit, formation and enforcement

of contracts, crime andpunishment, voting and juryservice.

An easy to use lesson plan isprovided for the volunteerpresenters in order to enhance theclassroom experience for studentparticipants. One hour of CLE creditis available for attorney presenters.For more information, contact MaryAnn Miranda at (859) 333-2613 [email protected].

YLS SEEKS VOLUNTEERS FOR “U@18” PROGRAM


everything on our “daily” list. Aslawyers with unwavering faith in ourown abilities, we frequently believe that“we” are the only person who can“properly” complete a task.Consequently, if, over a period ofseveral days, a task remains on your“daily” list, you should reassess whethersomeone else can perform that task. Youwill often find that while it appearedyou “had” to complete the task initially,the process of triaging other projectsprovides further clarity that someoneelse can adequately perform it. Then,identify who can “adequatelyaccomplish some or all of the task.”Thus, by this point, you have: (1)created daily and overall tasks lists, (2) prioritized your own tasks, (3) identified a task to be delegated, and(4) identified the individual(s) to whomyou are going to delegate.

Next, (5) schedule adequate time toassign and discuss the task with theindividual. Because of other pressingmatters, there may be an inclination tosell this step short. Think about howmuch time will be required, andschedule it with the individual. There isan inverse proportion between the timeinvested in delegation of a task at thefrontend and the overall time it takes toaccomplish the task. In other words, afew extra minutes at the outset leads toexponential gains overall.

Before meeting with the individual,you will need to (6) clearly define thetask and identify what must beachieved. If you are unable to clearly

articulate the task and its objective toyourself, how can a subordinate bereasonably expected to understand whathe or she is being asked to do? Oneframework for defining and delegatingtasks is the SMART criteria:

The task must be SPECIFIC: Likelegal writing, be clear and concise. Whilewe are (or should be) very clear in ourcommunications with clients, othercounsel and the courts, we often fail touse the same communication skills in ourfirms and organizations. To this end, aspecific task has a much greater chanceof being accomplished to your desirethan a general task. Answering the “W”questions (who, what, when, where,which, and why) can help clarify thetask. In the example above, the partnerasked for a general task (a memo), when,in reality, he wanted something specific(a brief to file in response to anotherparty’s motion).

The task must be MEASUREABLE:You must establish concrete criteria formeasuring progress. By measuringprogress, you ensure the individualsstay on track, meet deadlines, etc.Answer questions such as: How long?What issues? How will I know when itis accomplished?

The task must be ATTAINABLE: If itis going to take four months to plan acharity event, don’t start four weeksbefore the planned date. Similarly, ifreviewing documents as part of discoveryshould take a week, don’t wait until youonly have two days left to review them todelegate the task. (Obviously, the

attainability of a task depends highly onyour objective assessment of tasks onyour list, as noted above.)

The task must be REALISTIC:Related to a task’s attainability, a taskmust represent an objective towardwhich the employee is both able andwilling to work. Sure, an associate couldstay all weekend to work on that memo,but is it realistic to expect that? Whilesomething may be “attainable,” it doesnot mean it’s realistic to expect itsaccomplishment within the parametersgiven. A task is probably realistic if theemployee truly believes that it can beaccomplished.

The task must be TIME-ORIENTED:Finally, all tasks must have a timecomponent. Without a time frame, thereis no sense of urgency.

A key aspect of leadership isdelegation. Unless you to learn todelegate effectively, your firms andorganizations will be inefficient anddemoralized. Thankfully, delegation is askill that can be learned. By (1) creatingdaily and overall tasks lists, (2) prioritizing your own tasks, (3) identifying those tasks that can bedelegated, (4) identifying theindividual(s) to whom you are going todelegate, (5) scheduling adequate timeto assign and discuss the task with theindividual, and (6) clearly defining thetask, identifying what must be achieved,and communicating the task to others,you will enhance your own leadershipskills, and better serve your clients, yourfirm and your community.

Each year the Young Lawyers Section(YLS) of the Kentucky Bar Associationrecognizes certain individuals for variousawards. In addition to the annualOutstanding Young Lawyer Award and theNathaniel R. Harper Award, for 2010-2011, YLS has added two (2) new awards:the Service to Young Lawyers Award andthe Young Lawyer Service to CommunityAward. A description of each award and acall for nominations for each follows:

1. Outstanding Young Lawyer AwardAnnually, the YLS selects an

Outstanding Young Lawyer for his/hercivic activities, legal accomplishmentsand community involvement. Who isconsidered a Young Lawyer? AnyKentucky lawyer who is 40 years of ageor under or any Kentucky lawyer whohas practiced law 10 years or lessregardless of age.

If you know of a young lawyer whoexemplifies these outstanding charactertraits and activities who you would liketo nominate, please submit a brief coverletter (no more than one page, single-spaced) and a completed application

discussing why the nominee is deservingof the Outstanding Young Lawyer Award.The nominating letters should include anoverview of factors such as, but notlimited to, civic activities, legalaccomplishments and communityinvolvement. Nomination forms can befound at www.kbayls.com.

Enclosure letters and completedapplications can be mailed together andmust be received no later than Friday,April 1, 2011. They can be mailed toRebekkah Rechter, YLS Chair-Elect, at700 West Jefferson Street, Suite 1000,

CCaallll ffoorr NNoommiinnaattiioonnss ffoorr 22001100--22001111 YYLLSS AAwwaarrddss

Louisville, Kentucky 40202, or emailedas an attachment [email protected]. OnApril 4, YLS will forward all completedapplications to the panel of judges whowill select the 2011 Outstanding YoungLawyer (OYL) Award.

The OYL Award will be presentedduring the YLS Annual Luncheonscheduled for Thursday, June 16, duringthe KBA Annual Convention planned forJune 15-17 in Lexington. If you have anyquestions, please contact RebekkahRechter at [email protected] or (502) 235-0137.

2. Nathaniel R. Harper AwardThe Nathaniel R. Harper Award is a

trailblazer award that seeks to recognizethose individuals or entities who havedemonstrated a commitment to changingthe face of the bar in Kentucky bypromoting full and equal participation inthe legal profession through theencouragement and inclusion of women,minorities, persons with disabilities,members of the lesbian, gay, bisexual andtransgendered community and/or otherunderrepresented groups.

The Award is named after Nathaniel R.Harper, one of the first two AfricanAmericans to be admitted to practice lawin Kentucky. Because African Americanswere excluded from law schools in theCommonwealth at the time of Harper’sadmission, he established the Harper LawSchool in his law office, where he trainedand helped produce several AfricanAmerican lawyers. It is Harper’spioneering spirit and sense ofresponsibility to pave the way for othersthat the award seeks to honor.Nomination forms can be found atwww.kbayls.com.

Completed applications must bereceived no later than Friday, April 1,2011, and can be mailed to AdrienneGodfrey Thakur, Chair of YLS DiversityCommittee, Henry Watz Gardner &Sellars, PLLC, 401 W. Main Street, Suite314, Lexington, KY 40507, or sent as anemail attachment [email protected]. On April 4, YLSwill forward all completed applications tothe Diversity Committee who will selectthe recipient(s).

The Nathaniel A. Harper Award will

be presented during the KBAMembership Luncheon on Friday, June17, during the KBA Annual Conventionin Lexington, June 15-17. If you have anyquestions, please contact AdrienneGodfrey Thakur at [email protected] (859) 253-1320.

3. Service to Young Lawyers AwardNew for 2010-2011, the Service to

Young Lawyers Award will be presentedto a lawyer, non-lawyer, or organizationfor exceptional contributions to theprofessional and personal advancementand mentorship of young lawyers. Thisaward seeks to recognize those seniorlawyers, organizations, and others whoconsistently work to promote, mentor,and advance young lawyers.

If you know of a lawyer, non-lawyer,or organization who has madeexceptional contributions to theprofessional and personal advancementand mentorship of young lawyers, pleasesubmit a nomination letter (no more thanthree pages, single-spaced) discussingwhy the nominee is deserving of theService to Young Lawyers Award.

Nomination letters must be receivedno later than Friday, April 1, 2011, andcan be mailed to Nathan Billings, YLSChair, Billings Law Firm, PLLC, 219North Upper Street, Suite 200, Lexington,KY 40507, or sent as an email attachmentto [email protected]. This awardrecipient will then be selected by the YLSExecutive Committee during its quarterlymeeting in April 2011.

The Service to Young Lawyer Awardwill be presented during the YLS AnnualLuncheon scheduled for Thursday, June16, during the KBA Annual Conventionplanned for June 15-17 in Lexington. Ifyou have any questions, please contactNathan Billings at [email protected] (859) 225-5240.

4. Young Lawyer Service toCommunity Award

Also new for 2010-2011, the YoungLawyer Service to Community Award willbe presented to a Young Lawyers Sectionmember(s) for exemplary service to his orher community through volunteerism,service to non-profit organizations, and/orpro bono legal representation. Preferencewill be given to individual(s) whose

service is(are) varied, longstanding, and/orfills a unique niche. When a candidate hasengaged in pro bono representation,consideration will be given to both theamount of time the lawyer has contributedand the complexity of the representationscompleted.

If you know of a young lawyer whohas engaged in exemplary service to hisor her community, please submit anomination letter (no more than threepages, single-spaced) discussing why thenominee is deserving of the YoungLawyer Service to Community Award.Please include a description of at least thefollowing:

All Civic Activities, including thename, business address, and businesstelephone for all civic organizations inwhich the candidate has been a memberwhile a Kentucky Young Lawyer; anyspecific offices or leadership positionsthe candidate has held within theorganization; all the projects, programs,or activities organized or chaired for eachof the organizations listed above(including dates); and the nominee’smost significant contribution in the areaof civic activity;

All Community Activities, includingwhat leadership positions or projects thecandidate has participated in his or hercommunity; and

Pro Bono representation, including adescription of the amount of time thelawyer has contributed and thecomplexity of the representationscompleted.

Nomination letters must be receivedno later than Friday, April 1, 2011, andcan be mailed to Nathan Billings, YLSChair, Billings Law Firm, PLLC, 219North Upper Street, Suite 200, Lexington,KY 40507, or sent as an email attachmentto [email protected]. On April 4, YLSwill forward all completed applications tothe panel of judges who will select therecipient(s).

The Young Lawyer Service toCommunity Award will be presentedduring the YLS Annual Luncheonscheduled for Thursday, June 16, duringthe KBA Annual Convention planned forJune 15-17 in Lexington. If you have anyquestions, please contact Nathan Billingsat [email protected] or (859) 225-5240.



By Charles C. Mihalekand Steven M. McCauley

Introduction

T here has been a proliferation ofarbitration in the United States inthe past 20 years. This rapid

increase was caused by a suddenchange in the law which took place in1987.1 This was not a legislativechange but a judicial one. Most of thisincrease occurred primarily in the con-sumer vs. industry segment. Theindustries which favor mandatory pre-dispute arbitration include the securitiesindustry, residential construction indus-try, credit card industry, internetsoftware industry, and cable televisionindustry, among many others. Some ofthese industries, like the securitiesindustry, have established their ownarbitration forums, and as such theymaintain and administer the rules gov-erning the resolution of disputes, aswell as the recruitment, training andcompensation of arbitrators.2

Arbitration started out in this country,and in the various industries mentionedabove, as an expeditious alternative tocourt for businesses and gentlemen ofsimilar sophistication and bargainingpower to resolve disputes in private.3

There is a certain gentility to individualsnot filing suit in open court, but ratherfiling a claim before a private forumusing privately developed rules toachieve a full, unappealable and finalresolution. What is even better, theseindividuals and businesses are notrequired to use licensed attorneys. Thearbitrators thus do not have to be

licensed attorneys or judges; only busi-nessmen or women.

Since arbitration does not createjurisprudence or precedent and itsresults are not reasoned, the consumerhas no idea what to expect or why hereceived a particular arbitration result.And due to the nebulous mixture offacts, law, argument, common sense andnumbers involved in arbitration, therespondents often successfully defendon the grounds that the claim is time-barred because of an “applicable”statute of limitations. This article willexamine the viability of statute of limi-tations defenses in arbitration.

Statutes of Limitations Are OnlyApplicable to “Actions” in Kentucky

The statute in Kentucky prescribingthe maximum time periods duringwhich certain actions can be brought orrights can be enforced is codified underKRS 413 et seq. KRS 413.250 (settingout when an action commences) pro-vides in part that an action “shall bedeemed to commence on the date ofthe first summons or process issued ingood faith from a court having jurisdic-tion of the cause of action.” KentuckyRules of Civil Procedure CR 3.01 addi-tionally states that a civil action “iscommenced by the filing of a com-plaint with the court and the issuanceof a summons or warning order thereonin good faith.” Accordingly, the“action” contemplated by the statutesof limitations involves judicial pro-ceedings.4

Furthermore, Black’s Law Dictionarydefines “action” to include:

By contrast, an arbitration is not an“action” as it is not a proceeding in acourt of justice, nor does it involve thefiling of a complaint in a court. Black’sLaw Dictionary defines “arbitration” as“a method of dispute resolution involv-ing one or more neutral third partieswho are usually agreed to by the disput-ing parties and whose decision isbinding.”6 The device of arbitration hasbeen specifically recognized by theKentucky Constitution since 1799.7

Kentucky, as well as a majority of otherstates, has adopted the Uniform Arbitra-tion Act, codified as KRS 417.045 etseq., which requires arbitration of anycontroversy arising between parties to awritten arbitration agreement or an arbi-tration provision in a written contract.8

Kentucky law generally favors theenforcement of arbitration agreements.9

Statutes of limitations as set outunder KRS Chapter 413 et seq., by thestatute’s own terms, clearly apply onlyto an “action,” which is a “judicial pro-ceeding.” An arbitration is neither an“action” nor a “judicial proceeding,” buta non-judicial, out-of-court proceedingwhich makes an action or judicial pro-ceeding unnecessary.

While “court” may generally beunderstood to be limited to tribunals ofthe judicial branch of government, KRSChapter 413.270(2) (setting out theapplication of limitations to administra-tive agencies) expands the definition of“court,”10 providing in part:

1) If an action is commenced in duetime and in good faith in any courtof this state and the defendants orany of them make defense, and it isadjudged that the court had nojurisdiction of the action, the plain-

A civil or criminal judicial pro-ceeding… ‘An action has beendefined to be an ordinary proceed-ing in a court of justice, by whichone party prosecutes another partyfor the enforcement or protectionof a right, the redress or preventionof a wrong, or the punishment of apublic offense.5

ARBITRATION


tiff or his representative may,within 90 days from the time ofthat judgment, commence a newaction in the proper court. Thetime between the commencementof the first and last action shall notbe counted in applying any statuteof limitation.

2) As used in this section, “court”means all courts, commissions andboards which are judicial or quasi-judicial tribunals authorized by theconstitution or statutes of the Com-monwealth of Kentucky or of theUnited States of America. (empha-sis added)11

The court in Commonwealth, Nat-ural Resources and EnvironmentalProtection Cabinet v. Kentucky Ins.Guaranty Association addressed thisexpanded definition in the context ofadministrative hearings and distin-guished the quasi-judicial powers of theCabinet, explaining that the Cabinet’shearing officers are quasi-judicialbecause they make findings of factwhich are binding upon appeal to thecircuit and appellate courts unless notsupported by substantial evidence, andare granted authority by statute toimpose fines, revoke permits and orderthe forfeiture of performance bonds.12

Arbitrators, by contrast, are notgranted such quasi-judicial powers, norcan arbitration proceedings be con-strued as “courts, commissions orboards which are judicial or quasi-judicial tribunals.” Arbitration is aprivate, voluntary proceeding for theresolution of disputes. Furthermore, itis a substitute for a judicial proceedingin court. Even applying the expandeddefinition of “court” as defined byKRS 413.270(2), an arbitration pro-ceeding is not a proceeding in court,but rather a voluntary out-of-court pro-ceeding held for the sole purpose ofresolving a commercial contractualdispute by commercial experts chosenby the adverse parties.

As an arbitration proceeding is notan “action,” and as Kentucky statutes,civil procedure and case law clearlyindicate that statutes of limitations onlyapply to an “action,” it therefore fol-

lows that statutes of limitations do notapply to arbitrations in Kentucky. Arbi-trators misapply Kentucky law whenthey take statutes of limitations intoconsideration in determining their bind-ing decision.

Although unable to locate a Ken-tucky arbitration award or decisionwhich dismissed a claim because ofstatutes of limitations considerations,and which was subsequently vacated bya reviewing Kentucky court, we believethat such vacatur is a logical extensionof prevailing Kentucky precedent.

Other Jurisdictions and theApplicability of Statutes of Limitation to Arbitrations

Most states have held that an arbitra-tion proceeding is not an “action” andthat, as a result, limitations on “actions”do not apply to arbitration.13 Many,including Kentucky, have civil codesthat define “action” in a way that clearlydoes not include arbitration proceed-ings, and the correlative statutes oflimitations specifically limit the time

within which “actions” may be brought,leaving private contractual dispute reso-lutions out of the picture.

The issue of the inapplicability ofstatutes of limitations to arbitrations isaddressed thoroughly in NCR Corp. v.CBS Liquor Control, in which an arbi-trator’s refusal to apply a statute oflimitations was found not to be mani-fest disregard of the law.14 During thearbitration underlying that case, NCRCorp. argued that the claims against itwere barred by a number of statutes oflimitations. The arbitrator refused toapply those statutes of limitation andawarded damages to CBS Liquor Con-trol. NCR Corp. then petitioned tovacate the award, claiming that thearbitrator’s refusal to apply the statuteof limitations was manifest disregard ofthe law. The U.S. District Court dis-agreed, stating that “the effect of astatute of limitations is to bar an actionat law, not arbitration.”15

The District Court went on to pointout that, if NCR had allowed the claimsagainst it to remain in court, rather than


forcing them into arbitration, it mightwell have defended successfully onstatute of limitations grounds. The NCRcourt recognized the critical differencebetween statutes of limitations thatextinguish claims, on the one hand, andthose which place time limits on the fil-ing of actions, stating:

The statutes of limitation in NCRwere limitations on actions in courtrather than on the underlying claims,and were thus not an applicabledefense in an arbitration proceeding.The NCR court furthermore went on tohold:

In Massachusetts the court in Car-penter v. Pomerantz held the statute oflimitations on actions for breach of con-tract to be inapplicable to demands forarbitration.18 The court pointed out thatthe statute limited the time for com-mencement of actions and stated that“[a]s used in statutes of limitation, theword “action” has been consistentlyconstrued to pertain to court proceed-ings.”19

In Texas, the fact that state statutes oflimitations do not apply to arbitrationproceedings is demonstrated in the useof the word “suit.” For example, thestatute providing for the four-year limi-tations period reads, “[a] person must

bring suit on the following actions notlater than four years after the day thecause of action accrues…”20 UnderTexas law, bringing suit and initiatingarbitration have been viewed as separateand distinct concepts for 150 years. TheTexas Supreme Court stated in 1855:

It is commonly accepted black-letterlaw that “suit” connotes “any proceed-ing by a party or parties against anotherin a court of law.”22 Arbitration does nottake place within the state’s establishedjudicial system, nor do traditional rulesof civil procedure apply to arbitrationproceedings.

In California, the statute of limita-tions reads slightly differently, andrather than using the word “suit,” pro-vides that “[t]he periods prescribed forthe commencement of actions… are asfollows.”23 “Actions,” as defined underthe California C.C.P. are “an ordinaryproceeding in a court of justice…”24

Clearly, the California statute of limita-tions, like Texas and Kentucky’s statutesof limitations, only governs the admin-istration of justice by the courts, and thestatutes are, by their own terms, inappli-cable to arbitration.25

The Connecticut court in Skidmore,Owings & Merrill v. Connecticut Gen-eral Life Ins. Co. concluded that theplaintiff was not entitled to a judgmentdeclaring that a six-year statute of limita-tions relating to a breach of contractbarred the defendant from proceedingwith arbitration of a dispute arising undera contract between the parties, eventhough the contract contained an arbitra-tion clause, and held that the demand forarbitration by the defendant was not thebringing of an action within the bar ofany statute of limitations.26 Noting thatmost statutes of limitations in theiressential features were enacted long

The words court and suit have adistinct meaning, and suggest avery different idea from arbitratorsand arbitration. These words havebeen understood and construed inthe connection in which they areused to mean either the DistrictCourt or that of a justice of thepeace, as the case may be.21

There is no doubt that NCR andAcme could have lawfully incorpo-rated into the 1982 Agreementeither an express limitation onclaims or incorporated a statute oflimitations by reference, but theydid not do so.17

If the statutes of limitations onwhich NCR relies were the sortthat purport to extinguish claims,rather than limit actions in court,they might be relevant, but they donot purport to be statutes of thatsort. Rather, on their face theylimit the bringing of actions.16

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before the present methods of pleadingand practice were adopted, and that suchlimitation periods were designed to applyto the various actions known to the com-mon law, the court pointed out thatarbitration is not a common-law action,but rather an arrangement for taking andabiding by the judgment of selected per-sons in some disputed matter, instead ofseeking relief in the established tribunalsof justice.27

The court in Lewiston FirefightersAssociation v. City of Lewiston held thatarbitration is not an action at law, andthus that the six-year statute of limita-tions was not an automatic bar to aclaim for back-pay by a firefighters’association under the terms of a collec-tive bargaining agreement containingarbitration procedures.28

Affirming a decree dismissing thecity’s bill in equity for injunctive reliefrestraining arbitration proceedings thatconcerned claims by a constructioncompany against the city, the court inWorchester v. Park Construction Co.held that even though the contractbetween the parties provided for arbitra-tion, the statute of limitations had noapplication where the demand for arbi-tration was seasonably made by theconstruction company under the termsof the contract.29

The court in Har-Mar v. Thorsen &Thorshov reversed a judgment for theplaintiff which sought to enjoin an arbi-tration proceeding regarding a feedispute demanded by the defendantunder a contract between the partiesproviding for arbitration of disputes atthe choice of either party. The Har-Marcourt held that in view of the specialnature of arbitration proceedings and thestatutory and common-law meaning ofthe term “action,” the six-year statute oflimitations was not intended to bar arbi-tration of the defendant’s fee disputesolely because such claim would bebarred if asserted in an action in court.30

Noting that by statute the term “action”in the sense of a judicial proceedingincludes recoupment, counterclaim,setoff, suit in equity, and any other pro-ceedings in which rights are to bedetermined, and also noting that fewMinnesota cases which have attempteda common-law definition of the term

“action” have restricted it to the prose-cution in a court of justice of somedemand or assertion of right of one per-son against another, the court stated thatit thus appeared that the six-year statuteof limitations, both by statutory defini-tion and by common law, was intendedto be confined to judicial proceedings.31

Rejecting the plaintiff’s argument thatarbitration should be held to be anaction subject to the six-year statute oflimitations by implication, since prior tolegislative enactment of the UniformArbitration Act in 1957 no controversycould be arbitrated unless specific per-formance of the arbitration agreementcould be judicially compelled, the courtpointed out that such an argument wascontradictory to the historic objective,purpose and intent of the Uniform Act,which was to encourage voluntary,speedy, inexpensive, private and finalout-of-court arbitration of commercialcontractual disputes by commercialexperts.32

In Cameron v. Griffith, the defen-dants argued that their contract forcorporate stock was governed by thefour-year statute of limitations providedfor in G.S. 25-2-725 and the arbitrationwas not authorized since the claim wasbarred by that statute.33 The North Car-olina Court of Appeals held that thequestion as to whether the four-yearstatute of limitations was applicable wasirrelevant and chose not to make adetermination on such, holding instead:

In Broom et. al. v. Morgan StanleyDean Witter, Inc. et. al.,35 the Washing-ton Supreme Court vacated anarbitration award because the FINRA(formerly known as the NASD) Arbi-tration Panel had applied “an erroneousrule of law or mistaken application

thereof.”36 The court stated that “in theabsence of a clear statement to the con-trary by the Washington Legislature, wethus read the statutory language and ourown precedent to conclude that arbitra-tion is not an ‘action’ subject to statestatutes of limitations in these circum-stances.”37

Even a FINRA Arbitration Panel inCalifornia concluded that statutes of lim-itations are inapplicable to FINRAarbitration proceedings, stating as muchin the Arbitration Award they rendered.38

The survey of cases provided aboveis a small sampling of a large body ofcase law.39 There are numerous othercases through a wide range of jurisdic-tions which have likewise held thatstatutes of limitations are inapplicable toarbitrations because arbitrations are notactions.40 Arbitrators, whether in Ken-tucky or one of these other jurisdictions,must follow established legal precedentand hold statutes of limitations inappli-cable in the forum of arbitration.

ConclusionKentucky, like the majority of juris-

dictions, has interpreted its statutes, civilprocedures and case law to determinethat statutes of limitations are only appli-cable to “actions” which are judicial orquasi-judicial proceedings. As an arbitra-tion is a voluntary and privateout-of-court proceeding, which serves asa substitute for judicial proceedings, ittherefore falls outside the scope andreach of statutes of limitations thatwould otherwise be applicable if the par-ties had chosen to resolve their disputein court. Unless otherwise specified bythe agreement entered into by the par-ties, or by express statutory languagewhich defines an “action” to includearbitration, the only applicable limita-tions period in a securities arbitration isthe six-year eligibility rule set forth inFINRA Rules 12206(a) and 13206(a)and NYSE Rule 603, both of which aregenerally incorporated by reference intobroker-dealer customer agreements witharbitration clauses. Arbitrators who takestatutes of limitations into considerationwhen rendering their decision are misap-plying the established legal precedentthat statutes of limitations are inapplica-ble to arbitrations.

[F]or by its terms the limitationsperiod stated in G.S. 25-2-725applies only to an “action,” whichis a “judicial proceeding,” G.S.25-1-201(1); and an arbitration isneither an “action” nor a “judicialproceeding,” but a non-judicial,out-of-court proceeding whichmakes an action or judicial pro-ceeding unnecessary.34



The authors would like to acknowl-edge the assistance of Nathan Paul Isaacin the research and preparation of thisarticle.

ENDNOTES1. The landmark case of Shearson /

American Express, Inc. v. McMa-hon, 482 U.S. 220 (1987),established arbitration as the vehi-cle for securities investors andbrokerage customers to arbitratetheir statutory fraud claims andother disputes with the brokerageindustry pursuant to pre-disputearbitration agreements. Before thatcase, arbitration was for the mostpart confined to member to mem-ber disputes within a particularindustry or trade organization. In 1974, the U.S. Supreme Courtdecided Scherk v. Alberto CulverCo., 417 U.S. 506 (1974), holdingthat parties could agree to arbitratefederal securities claims in interna-tional arbitration.Since 1987, the U.S. Supreme Courthas decided a line of cases reinforc-ing and expanding the use ofarbitration. Most recently, on June21, 2010 the U.S. Supreme Courtheld that an employer could causean employee to arbitrate a race dis-crimination and retaliation casebased on the employment agreementthe employee signed when hired.Rent-a-Center, West, Inc. v. Jackson,130 S.Ct. 2772 (2010).

2. Some of these arbitration forumsinclude the Financial Industry Reg-ulatory Authority (FINRA,formerly known as the NationalAssociation of Securities Dealers,or the NASD), the New York StockExchange (NYSE), the AmericanArbitration Association (AAA), theNational Arbitration Forum (NAF),the National Labor Relations Board(NLRB), and the Chicago Interna-tional Dispute ResolutionAssociation (CIDRA), amongmany others.

3. Under English law, the first law onarbitration was the Arbitration Actof 1697. The Jay Treaty of 1794between Britain and the United

States sent unresolved issuesregarding debts and boundaries toarbitration.

4. Metts v. City of Frankfort, Ky.App., 665 S.W.2d 318 (1984); seealso, Whittaker v. Smith, Ky., 998S.W.2d 476 (1999).

5. Black’s Law Dictionary 32 (9th Ed.2009) (citation omitted) (emphasisadded).

6. Black’s law Dictionary 119 (9th Ed.2009) (citation omitted). Earliereditions of Black’s Law Dictionaryalso defined “arbitration as “anarrangement for taking and abidingby the judgment of selected personsin some disputed matter, instead ofcarrying it to established tribunalsof justice, and is intended to avoidthe formalities, the delay, theexpense and vexation of ordinarylitigation.”

7. See Fite & Warmath ConstructionCo. v. MYS Corp., Ky., 559 S.W.2d729 (1977). The Kentucky Consti-tution at section 250 provides: “Itshall be the duty of the GeneralAssembly to enact such laws asshall be necessary and proper todecide differences by arbitrators,the arbitrators to be appointed bythe parties who may choose thesummary mode of adjustment.”

8. Id. at 734.9. Kodak Mining Co. v. Carrs Fork

Corp., 669 S.W.2d 917 (Ky. 1984). 10. Commonwealth, Natural Resources

and Environmental Protection Cab-inet v. Kentucky Ins. GuarantyAssociation, Ky. App., 972 S.W.2d276 (1997).

11. Id. at 280.12. Id. at 279. 13. See Skidmore, Owings & Merrill v.

Connecticut General, 197 A.2d 83(Conn. 1963) (an arbitration is notthe bringing of an action within themeaning of that phrase as used inthe statute of limitations); Har-Marv. Thorsen & Thorshov, 218 N.W.2d751 (Minn. 1974) (based on the spe-cial nature of arbitrationproceedings and both the statutoryand common-law meaning of theterm “action,” we feel compelled tohold that the statute of limitationswas not intended to bar arbitration

of the claimant’s claim solelybecause such claim would be barredif asserted in an action in court);Lewiston Firefighters Association v.City of Lewiston, 354 A.2d 154 (Me.1976) (arbitration is not an action atlaw, and the statute is not, therefore,an automatic bar to the Firefighters’recovery); Son Shipping v. Defosse& Tanghe, 199 F.2d 687 (2nd Cir.1952) (arbitration is not within theterm “suit” as used in the statute oflimitations, and is instead the per-formance of a contract providing forthe resolution of controversy with-out suit); SCM Corp. v. Fisher ParkLane, 358 N.E.2d 1024 (1973)(arbitrators have the power to fash-

Charles C.Mihalek is thefounding mem-ber of CharlesC. Mihalek,P.S.C., which heestablished in1977. Mihalekhas served as

senior trial attorney with the UnitedStates Securities and ExchangeCommission, New York RegionalOffice, Division of Enforcement;director of the Department of Bank-ing and Securities, Division ofSecurities, for the Commonwealthof Kentucky; special assistant attor-ney general in charge of SecuritiesCrimes for the Commonwealth ofKentucky; and special counsel forthe New York Stock Exchange, Inc.,with the litigation and regulatoryresponsibility for the complexenforcement matters involvingmembers of the NYSE. A native ofPennsylvania, Mihalek received hisundergraduate degree from RutgersUniversity in 1967 and received hislaw degree from the University ofKentucky College of Law in 1969.Mihalek concentrates his practicein the areas of investors’ rights,securities, commodities and othercomplex civil litigation, includingclass actions, arbitration and medi-ation, and the representation ofindividuals and firms in securitiesinvestigations, disciplinary hearingsand employment matters.


ion remedies appropriate to resolv-ing the dispute before them,including reformation of a contract,often applying principles more lib-eral than judicial equity, theirfunction as arbitrators being to “finda just solution” to the controversybetween the parties); AssociatedTeachers of Huntington v. Board ofEducation, 33 N.Y.2d 229 (1973)(absent a provision to the contraryin the arbitration agreement, arbitra-tors are not bound by principles ofsubstantive law or rules of evi-dence… their duty is to reach a justresult regardless of technicalities);Town of Haverstraw v. RocklandPatrolman’s Benevolent Association,481 N.E.2d 248, 491 N.Y.S.2d 616(1985) (arbitrator may do justice ashe sees it, applying his own sense oflaw and equity to the facts as hefinds them to be); Raisler Corp. v.NYC Housing Authority, 32 N.Y.2d274 (1973) (absent provision to thecontrary in the arbitration agree-ment, arbitrators are not bound byprinciples of substantive law orrules of evidence); NCR Corp. v.CBS Liquor Control dba Acme Cash

Register, 847 F.Supp. 168 (S.D.Ohio 1993) (the effect of a statute oflimitations is to bar an action at law,not arbitration); and Carpenter v.Pomerantz, 634 N.E.2d 587(Mass.App. 1994) (as used in thestatutes of limitations, the word“action” is consistently construed topertain to court proceedings, notarbitration); and Miele v. Prudential,656 So.2d 460 (Fla. 1995) (arbitra-tion is not considered a “civilaction”).

14. NCR Corp. v. CBS Liquor Controldba Acme Cash Register, 847F.Supp. 168, 172 (S.D. Ohio 1993).

15. Id. at 172 (emphasis added).16. Ibid.17. Ibid.18. 634 N.E.2d 587, 590 (Mass.App.

1994).19. Id. at 590.20. Tex. Civ. Prac. & Rem. Code Ann.

§ 16.004 21. Yarborough v. Leggett, 1855 WL

4956 (Tex. 1855). 22. Black’s Law Dictionary 1572 (9th

Ed. 2009) (citation omitted). 23. Cal. C.C.P. § 335 (emphasis

added). 24. Cal. C.C.P. § 22 (emphasis added).25. Several states have statutes of limi-

tations provisions similar toCalifornia’s, including Kentucky,which provide limits on “actions.”For a comprehensive list of cases inwhich courts have ruled that arbi-tration proceedings did notconstitute “actions,” and thusstatutes of limitations were not

applicable, see, Statute of Limita-tions as a Bar to Arbitration UnderAgreement, 94 A.L.R.3d 533(2004).

26. 25 Conn. Supp. 76, 197 A.2d 83(1963).

27. Id. at 85.28. 354 A.2d 154 (Me. 1976).29. 361 Mass. 879, 281 N.E.2d 600

(1972). For other Massachusettsdecisions which have consistentlyconstrued the word “action” to per-tain only to court proceedings, seealso Boston v. Turner, 201 Mass.190, 196, 87 N.E. 634 (1909);Pigeon’s Case, 216 Mass. 51, 56-57, 102 N.E. 932 (1913); Ginzbergv. Wyman, 272 Mass. 499, 501, 172N.E. 614 (1930); and Lynch v.Springfield Safe Deposit & TrustCo., 300 Mass. 14, 16, 13 N.E.2d611 (1938).

30. 218 N.W.2d 751, 754 – 756 (Minn.1974).

31. Id. at 755.32. Id. at 754.33. 370 S.E.2d 704 (1988).34. Id. at 704 – 705.35. Case No. 06-2-32543-5SEA

(unpublished).36. RCW 7.04A.230. 37. See Case No. 82311-1 (July 22,

2010).38. See Angle et. al. v. ING Financial

Advisors et. al., 2006 WL 1725915(FINRA).

39. See Statute of Limitations as a Barto Arbitration Under Agreement, 94A.L.R.3d 533, 534 (2004).

40. Id. at 533 – 534.

A native ofLexington,Steven M.McCauley hasbeen an attorneywith Charles C.Mihalek, P.S.C.for nearly 15years. McCauley

received his undergraduate degreefrom the University of Kentucky in1987 and received his law degreefrom the University of Kentucky Col-lege of Law in 1990. He also holdsan MBA in finance which hereceived with distinction from theUniversity of Kentucky College ofBusiness and Economics. McCauleyserves as both an arbitrator andpanel chairperson for the FinancialIndustry Regulatory Authority(FINRA). McCauley focuses his prac-tice on securities law matters,including securities arbitrations andmediations, security enforcementmatters, securities class actions,and litigation.

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By Janet P. Jakubowicz andJ. Curtis McCubbin

Why Kentucky’s statutes of limitationsshould apply to claims raised in arbitration1

A ny defense lawyer who fre-quently arbitrates claims beforeFINRA,2 the American Arbitra-

tion Association or a similar forum, haslikely had occasion to file a motion todismiss claims that are on the very faceof the Statement of Claim time barredby the applicable statutes of limitations.Indeed, as young lawyers, we aretrained that every cause of action has aspecific statute of limitations withinwhich it must be brought or it will belost forever. Despite this axiomatic prin-ciple, the plaintiffs’ bar has been able topersuade some courts (and some arbitra-tion panels) that statutes of limitationsgoverning the timeliness of claims donot apply in arbitrations.

This article will present the argu-ments being advanced by the plaintiffs’bar; the rejection of such arguments bythe substantial majority of state and fed-eral courts; and why Kentucky courtsshould follow those jurisdictions whichhold that the arbitrators, not the courts,have the exclusive authority to assessthe timeliness of a plaintiff’s claims.

A. Where parties have agreed to abroad arbitration provision, thedefense of statute of limitations isgenerally availableAs a general rule, if parties have

agreed to a broad arbitration provision

which is otherwise silent as to the issueof statute of limitations defenses, theapplicability of such a defense is for thearbitrators to decide.3 Those attemptingto avoid application of a statute of limi-tations in arbitration attempt to draw adistinction between arbitrations and“actions” in court. An oft-cited case bythe plaintiffs’ bar addressing this issue isHar-Mar, Inc. v. Thorsen & Thorshor,Inc.4 In Har-Mar, the MinnesotaSupreme Court stated, “[b]ased upon thespecial nature of arbitration proceedingsand both the statutory and common-lawmeaning of the term ‘action,’ we feelcompelled to hold that Section541.05(1) [the six year statute of limita-tions] was not intended to bararbitration of Thorsen’s fee disputesolely because such claim would bebarred if asserted in an action in court.”5

However, numerous other state andfederal courts have rejected this hyper-technical analysis which wouldcompletely prohibit the application ofstatutes of limitations in arbitration pro-ceedings. In Nielsen v. Barnett,6 forexample, the Michigan Supreme Courtwas asked to determine whether an arbi-tration panel had erred by denying theplaintiffs’ claim because it was barredby the two year statute of limitationsgoverning malpractice actions. Theplaintiffs argued that, because the“statute defining the period of limita-tions for a malpractice action onlyapplies to court actions,”7 the arbitrationpanel erred in dismissing the plaintiffs’claims as untimely.8

In squarely rejecting this argument,

the Nielsen Court first noted that anarbitration is a creature of contract.9 Theauthority of arbitrators is conferred bythe arbitration agreement itself and arbi-trators are bound to act within thoseterms.10 The Court observed thatbecause the arbitration clause was writ-ten in broad and comprehensivelanguage and included “any claims ordisputes” arising from or related to thecontract, the arbitrators were empow-ered with the authority to determinewhether or not the plaintiffs’ claimswere stale.11 Moreover, the fact that thearbitration agreement was silent on theissue of whether the arbitrators hadauthority to make a determination oftimeliness was not fatal because it camewithin the arbitrator’s broad grant ofauthority:

The Court next looked at whether thestatute of limitations applied by the arbi-trators was consistent with the parties’reasonable expectations when theyagreed to arbitrate any claims or dis-putes. According to the Nielsen Court,“the application of the malpracticestatute of limitations to the plaintiffs’claim was certainly within the contem-plation of the parties to the arbitrationagreement. It was certainly not beyondthe reasonable expectation of the partiesthat the arbitration panel would judgethe timeliness of the plaintiffs’ claimconsistent with the Legislature’s deter-mination of the appropriate period oflimitation for a malpractice claim.”13

Just as the arbitrators were author-ized to determine whether thedefendants owed a duty to theplaintiffs, whether the defendantsbreached the standard of care,whether any breach of the standardof care was a proximate cause ofthe plaintiffs’ injury, and theamount, if any, of the plaintiffs’damages, we believe that the broadgrant of authority also empoweredthe arbitrators to determinewhether, in the first instance, theplaintiffs’ claim was stale.12

ARBITRATION


The Nielsen Court determined that thepolicy reasons behind statutes of limita-tions — to prevent stale claims andprovide finality to litigation — wereequally relevant both to actions filed incourt and to claims pursued in bindingarbitration.14 Thus, the Court rejectedany per se rule that arbitrators have noauthority to interpret or apply statutes oflimitations, and reinstated the circuitcourt order denying the plaintiffs’motion to vacate the arbitration award.15

The sound reasoning applied by theNielsen Court applies with equal force toKentucky arbitrations. Arbitration is notintended to enlarge or re-write existinglaws,16 but rather to provide an efficient,less costly alternative forum for resultingdisputes under existing laws. Parties donot forgo substantive rights by agreeingto arbitrate their disputes.17 However, if astatute of limitations defense no longerapplies, then a substantive right is beinggiven up and the parties may not evenrealize it. It would be inconsistent andunfair for a party to invoke the protec-tions of Kentucky’s state laws, while atthe same time seeking to avoid the limi-tations periods contained in those samestatutes. Indeed, plaintiffs frequently seekattorneys’ fees and damages understatutes which only apply to “lawsuits”or “actions,” yet argue that arbitrationsare not “suits” or “actions” so as to avoidthe application of statutes of limita-tions.18 In securities arbitration, Plaintiffscommonly bring breach of fiduciaryduty, state securities statutory violations,breach of contract, and negligence claimsthat fall under state statutes or commonlaw. It is reasonable to assume that par-ties have an expectation that an arbitratorwill determine the timeliness of theasserted claims consistent with the appli-cable state and federal statutes oflimitations.19 Indeed, a contrary positionwould lead to the absurd results of par-ties being able to flood arbitration panelswith stale, untimely claims many yearsafter the fact.20

To take this argument to its logicalconclusion, how can arbitration panelsapply any type of statute that onlyapplies to “lawsuits” or “actions?” If this

is the threshold, then arbitrators will onlybe allowed to consider “rules” or “regu-lations” propagated by their governingbodies. Obviously, this outcome was notintended by the arbitration legislationand the spirit of the arbitration process.Statutes of limitations thus protect partiesfrom having to deal with disputes(whether in court or arbitration) in whichthe search for truth has been seriouslyimpaired by plaintiffs who have slept ontheir rights and evidence may have beenlost or witnesses’ memories faded.

Moreover, there can be little doubtthat an arbitration is a quasi-judicialforum.21 The fact that the arbitrator isappointed by agreement to act as arbi-trator and is empowered to determinethe rights, duties and obligations of theparties, enforce sanctions, and render abinding decision which is enforceableagainst one of them, clearly demon-strates that the arbitration isquasi-judicial in nature.22

B. Kentucky should follow the majorityof courts which have recognized theapplicability of statutes oflimitations in arbitrationAn overwhelming majority of courts

from across the country have both

expressly or implicitly recognized theapplicability of federal and statestatutes of limitations in arbitration pro-ceedings. For example, in MerrillLynch, Pierce, Fenner & Smith v. Jar-ros,23 the appellants challenged thearbitrators’ denial of their motion todismiss on statutes of limitationsgrounds. Although the Sixth Circuitrefused to vacate the arbitrators’ deci-sion, it did not do so on the ground thatarbitration actions are exempt fromstatutes of limitations bars. To the con-trary, the Sixth Circuit implicitlyrecognized that statutes of limitationsdo apply to arbitrations: “Because Jar-ros did not institute arbitrationproceedings until much longer than oneyear. . . [after discovery of the factsunderlying his claim], it appears hisfederal securities claims were nottimely brought. . . Even accepting thisargument as true, there was a period oftwo years and two months duringwhich any claim that arose would nothave been time-barred. It is likely thatat least one state law claim arose duringthis period and therefore would not betime-barred. A single timely state lawclaim would support the arbitrationaward in its entirety.”24

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This same result was reached byJudge David L. Bunning from theUnited States District Court for the East-ern District of Kentucky in First FamilyFinancial Services, Inc. v. Mollet.25 Inthat case, Judge Bunning was confrontedwith an arbitrator’s award which the los-ing parties sought to vacate, in part,because the arbitrator had failed to applythe applicable statutes of limitations andbar the claim. Although the Court ulti-mately refused to vacate the award, theMollett Court noted that because thearbitrator was “presented with conflict-ing theories concerning how the statuteof limitations should be interpreted,” itcould not be said that he manifestly dis-regarded the law.26

Obviously, if there were a clearlydefined legal principle that statutes oflimitations do not apply to arbitrations,it would have been unnecessary for theCourts in Jarros and Mollett to analyzewhether the limitations had run on allof the claims being asserted in theunderlying arbitrations. The reasoningof the Jarros and Mollett Courts istherefore consistent with cases fromother jurisdictions which haveexpressly held that state and federalstatutes of limitations apply to arbitra-tion proceedings.27

ConclusionContrary to the handful of out of

state courts which have held thatstatutes of limitations do not apply inarbitrations, these authors believe thatthe more reasoned approach is for Ken-tucky to follow the majority ofjurisdictions which permit arbitrators toapply statutes of limitations where theparties have otherwise agreed to abroad arbitration provision.28 Such aposition would be consistent with Ken-tucky’s public policy against theprosecution of stale and outdatedclaims in litigation.29 It would also bein line with the expectations of the par-ties that the arbitral award for whichthey bargained will truly be final andimmune from intrusive review by thecourts.

However, until this issue has been

definitely resolved by our Kentuckycourts, parties should consider specify-ing in their arbitration contracts whichstatutes of limitations will govern theirfuture disputes or specify a time limit tobring certain claims so far as to elimi-nate the risk of having to defend againstclaims that one would ordinarily believeare time barred.

ENDNOTES1. The authors would like to acknowl-

edge the assistance of Jessica T.Sorrels, Esq. for her work in con-nection with this article.

2. In 2007, the National Associationof Securities Dealers, Inc. mergedwith the New York StockExchange. The merged entity isknown as the Financial IndustryRegulatory Authority (“FINRA”).FINRA is the regulatory bodywhich administers arbitrationclaims between broker dealers andcustomers in the securities industry.Arbitration is the primary disputeresolution mechanism in the securi-ties industry today.

3. See, e.g., ON Equity Sales Co. v.Pals, 528 F.3d 564 (8th Cir. 2008);Liberte Capital Group, LLC v.Capwill, 148 Fed. Appx. 413 (6th

Cir. 2005) (unpublished); MONYSec. Corp. v. Bornstein, 390 F.3d1340 (11th Cir. 2004); Wash.Square Sec., Inc. v. Aune, 385 F.3d432 (4th Cir. 2004); IDS Life Ins.Co. v. Royal Alliance Assocs., Inc.266 F.3d 645 (7th Cir. 2001);Decker v. Merrill Lynch, Pierce,Fenner & Smith, Inc., 205 F.3d906 (6th Cir. 2000).

4. 218 N.W.2d 751 (Minn. 1974).5. For examples of other courts that

have concluded that arbitrations arenot “actions” in the context ofissues related to statutes of limita-tions, see, e.g., Skidmore, Owens &Merrill v. Connecticut General LifeInsurance Co., 197 A.2d 83, 87(Conn. Super. 1963) (concludingthat “[a]rbitration is not a common-law action, and the institution ofarbitration proceedings is not the

bringing of an action under any ofour statutes of limitation.”); Lewis-ton Firefighters Association v. Cityof Lewiston, 354 A.2d 154, 167(Maine 1976) (holding that “[a]rbi-tration is not an action at law andthe statute is not, therefore, anautomatic bar to the [Firefighters’]recovery.”); Broom v. Morgan Stan-ley DW Inc., 236 P.3d 182, 244(Wash. 2008) (holding that an arbi-tration is not an “action” subject tothe state of Washington’s statutesof limitations.

6. 485 N.W.2d 666 (Mich. 1992).7. Id. at 668.8. The parties’ arbitration agreement

was governed by the MalpracticeArbitration Act, M.C.L. §600.5805(1); M.S.A. §27A.5805(1) which provides: A person shall not bring or main-tain an action to recover damagesfor injuries to persons or propertyunless, after the claim first accrueto the plaintiff …, the action iscommenced within the periods oftime prescribed by this section. (emphasis added).

Janet P.Jakubowicz is amember withthe firm ofGreenbaum Doll& McDonaldPLLC in theLitigation andDispute Resolu-

tion Practice Group and the ClassAction Defense Team chair. Herpractice focuses on business andcommercial litigation, with anemphasis in the areas of financialinstitutions, securities and RICO lit-igation and arbitration and classaction litigation. She received herundergraduate degree from the Uni-versity of Louisville in 1979 and herJ.D. from the University of KentuckyCollege of Law in 1982. Jakubowiczserved as past president of theLouisville Bar Association and is amember of the Kentucky and Ameri-can Bar Associations.

The statute further provides that:“[t]he period of limitations is twoyears for an action charging mal-practice.” M.C.L. § 600.5805(4);M.S.A. § 27A.5805(4) (emphasisadded).

9. Id. at 669.10. Id.11. Id. at 670. This principle is consis-

tent with the general propositionthat arbitration awards should beupheld so long as they do not disre-gard the plain provisions of thecontract. See General TelephoneCompany of Ohio v. Communica-tions Workers, 648 F.2d 452 (6th

Cir. 1981). See also Orion Shipping& Trading Co. v. Eastern StatesPetroleum Corp., 312 F.2d 299 (2nd

Cir. 1963).12. Id.13. Id.14. Id. at 66915. Id. at 671.16. In 1984, Kentucky adopted the

Uniform Arbitration Act, KRS§417.045, et seq., , which governsarbitrations in Kentucky. If thearbitration agreement at issueinvolves interstate commerce (such

as securities industry disputes), theFederal Arbitration Act, 9 U.S.C. §1, et seq. also applies.

17. Mitsubishi Motors Corp. v. SolerChrysler-Plymouth, 473 U.S. 614,628 (1985).

18. For example, under the FederalSecurities Law, attorneys’ fees arerecoverable for violations of 10b-5to any person “who may sue at lawor in equity in any court of compe-tent jurisdiction.” 15 U.S.C. § 78r(emphasis added). Plaintiffs insecurities arbitrations frequentlymake claims for their attorneys’fees pursuant to this and other simi-lar statutory provisions thatreference only courts, and not arbi-tration proceedings.

19. It is a well established policy inKentucky that statutes of limitationsare statutes of repose and wereenacted “to fix in every case, a defi-nite limit” of time for bringingactions or proceedings for relief.Hoffert v. Miller, 9 Ky L. Rptr. 732,86 Ky 572, 6 S.W. 447 (Ky. 1888).There is no logical reason to believethat the Legislature intended toexempt arbitrations from that policy.

20. In securities industry arbitrations,FINRA Rule 12206 contains an eli-gibility provision which provides,

in part, that no claim can be sub-mitted to arbitration if six yearshave elapsed “from the occurrenceor event giving rise to the claim.”In contrast, the AAA CommercialArbitration Rules impose no spe-cific outside time limits withinwhich claims must be filed.

21. The format and substance of aFINRA arbitration proceeding, forexample, is clearly judicial innature. Such proceedings providefor a statement of claim and answerto be filed, written discovery to beconducted pursuant to establishedguidelines, motion practice, sub-poenas, opening statements,followed by direct and cross exami-nations, expert witnesses, closingstatements, deliberations by thearbitrations and issuance of a writ-ten award. FINRA Code ofArbitration, § 13000, et seq.

22. Kentucky courts have not yet hadoccasion to address the issue ofwhether an arbitration is a quasi-judicial proceeding. However,courts from other jurisdictions haveso held. See, e.g., Cahn v. Interna-tional Ladies’ Garment Union, 203F. Supp. 191 (E.D. Pa. 1962) (hold-ing that if “one is appointed byagreement of parties to act as arbi-

J. Curtis McCub-bin is assistantcorporate coun-sel for J.J.B.Hilliard, W.L.Lyons, LLC, abrokerage firmheadquartered inLouisville. His

practice focuses on securities arbi-tration and litigation, regulatory andstatutory compliance and generalcorporate law. McCubbin receivedhis undergraduate degree from Tran-sylvania University in 2003 and hisJ.D. from the University of KentuckyCollege of Law in 2006. He is amember of the Securities Industryand Financial Markets Association,as well as the Louisville and Ken-tucky Bar Associations. McCubbinalso serves as secretary for YPALCares and volunteers with Legal AidSociety and AMBUCS.



trator, and is empowered to resolvedispute between them, he is, in soacting, performing a ‘quasi-judicial’function ….); International Associa-tion of Firefighters v. City of Everett,146 Wash. 2d. 29, 42 P.3d 1265(Wash. 2002) (holding that arbitra-tions may be judicial in nature,depending on the circumstances);Boyd v. Davis, 897 P.2d 1239 (Wash.1995) (quoting N. State Constr. Co. v.Banchero, 386 P.2d 625 (1963)) (percuriam) (concluding that “[a]rbitra-tors, when acting under the broadauthority granted them by both theagreement of the parties and thestatutes, become the judges of boththe law and the facts.”) In addition, atleast one Kentucky federal court,Warren v. Tacher, 114 F. Supp. 2d600, 602-03 (W.D. Ky. 2000), hasrecognized the authority of FINRAarbitrators to decide prehearing dis-missals for failure to state a claim (asa court would do) so long as the dis-missal is not fundamentally unfair.

23. 70 F.3d 418, 421 (6th Cir. 1995).

24. Id. at 421-2225. 2006 WL 695258 (E.D. Ky. 2006).26. Id. at *8.27. For examples of other courts which

have concluded that statutes of limi-tations apply to arbitrationproceedings, see O’Neel v. NationalAssoc. of Securities Dealers, Inc.,667 F.2d 804, 807 (9th Cir. 1982)(holding that the validity of time-barred defenses to enforcement ofarbitration agreements is generallydetermined by the arbitrator, not thecourt); United Rubber, Cork,Linoleum & Plastic Workers ofAmerica v. Pirelli Armstrong Tire,Corp., 104 F.3d 181 (8th Cir.1997)(same); National Iranian OilCo. v. Mapco Int’l Co., 983 F.2d485, 491 (3d, Cir. 1992) (holdingthat the arbitrator determines thetimeliness of the underlying claim);Durham County v. Richards &Assoc., Inc., 742 F.2d 811, 815 (4th

Cir. 1984) (concluding that claimsof untimeliness are for the arbitra-tor); Berkley v. Merrill Lynch, 2008

WL 755875 (S.D. Ohio 2008)(implicitly recognizing that thetimeliness of claims is determinedby the arbitrators); Max Mark Color& Chemical Co. Employees’ ProfitSharing Plan v. Barnes, 37 F. Supp.2d 248, 255 (S.D.N.Y. 1999) (hold-ing that arbitration panel actedappropriately in granting a motionto dismiss based, in part, onERISA’s three year statute of limita-tions); Dean Witter, Reynolds, Inc. v.McCoy, 853 F. Supp. 1023, 1034(E.D. Tenn. 1994) (“[t]he NASDarbitrators are required to followand apply the same substantive lawand the applicable statute of limita-tions as the courts”); Davis v.Skarnulis, 827 F. Supp. 1305, 1308(E.D. Mich. 1993) (holding thatstatute of limitations defenses applyin arbitration); Prudential Securities,Inc. v. LaPlant, 829 F. Supp. 1239,1243 (D. Kan. 1993) (“[I]t is well-settled that the determination of alltime-barred defenses, including thestatute of limitations, is to be madeby the arbitrator, not the courts.”). Inaddition, the FINRA Code of Arbi-tration Procedure specifically allowsfor dismissal based on time-barredclaims. See FINRA Rule 12206(“This Rule shall not extend appli-cable statutes of limitations. . . .”)(emphasis added).

28. At least three states (New York,Delaware and Georgia) have passedstatutes expressly providing thatparties may assert the applicablestatutes of limitations as a bar to anarbitration. See, e.g., NY CPLR§7502(b); 10 Del. C. §5702(b);Official Code of Georgia § 9-9-5.

29. See also National Iranian Oil Co.v. MAPCO International, Co., 983F.2d 485, 491 (3d Cir. 1992) (con-cluding that while the FederalArbitration Act reflects a strongfederal policy favoring arbitration,Congress, by declining to providefor a specific limitations period, didnot intend to grant parties the per-petual right to enforce arbitrationagreements).

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By Walter L. Sales

The Federal Arbitration Act (here-inafter the FAA) provides that:

Kentucky’s Uniform Arbitration Act(KUAA) has a similar provision:

The KUAA is a uniform statute whichhas been adopted by most of the states.

Federal and State SubstantiveDevelopments

The Kentucky Supreme Court hasopined that the relevant provisions ofthe FAA and KUAA, cited above, arevirtually identical, Louisville Peterbilt,Inc. v. Cox4. When a state statute ismodeled on a federal one, typically, asto the substantive provisions of thestatutes, Kentucky courts have beendirected to adopt U.S. Supreme Court orSixth Circuit law interpreting the federalstatute when there is a lack of precedentin Kentucky.5 In Peterbilt, the KentuckySupreme Court adopted the U.S.Supreme Court’s basic guide on inter-preting the FAA as the way to interpretthe KUAA, “any doubts concerning thescope of arbitrable issues is to beresolved in favor of arbitration, whetherthe problem at hand is the constructionof the contract language itself or an alle-gation of waiver, delay, or a like defenseto arbitrability.” 6 In Peterbilt, the Courtheld that even as to allegations that thecontract containing the agreement toarbitrate was procured by fraud thatquestion was reserved for the arbitrator.7

The identical savings provisions in theFAA and KUAA which exempt fromenforcement those agreements which“save upon such grounds as exist at lawfor the revocation of any contract,” donot apply to fraud in the inducement toenter the contract, but only as to fraudin the inducement to agree into the arbi-tration provision itself.8

To determine whether and to whatextent parties entered into an agreementwhich requires arbitration, courts willobviously apply the law of the state

A written agreement to submit anyexisting controversy to arbitration or aprovision in written contract to submitto arbitration any controversy there-after arising between the parties isvalid, enforceable and irrevocable, saveupon such grounds as exist at law forthe revocation of any contract. Thischapter does not apply to: (1) Arbitration agreements betweenemployers and employees or betweentheir respective representatives; and (2) Insurance contracts. Nothing in thissubsection shall be deemed to invali-date or render unenforceablecontractual arbitration provisionsbetween two (2) or more insurers,including reinsurers.3

A written provision in any maritimetransaction or a contract evidencing atransaction involving commerce to set-tle by arbitration a controversythereafter arising out of such contractor transaction, or the refusal to performthe whole or any part thereof, or anagreement in writing to submit to arbi-tration an existing controversy arisingout of such a contract, transaction, orrefusal, shall be valid, irrevocable, andenforceable, save upon such grounds asexist at law or in equity for the revoca-tion of any contract.2

where the contract was made or whichgoverns the interpretation of the agree-ment, both to efforts to compelarbitration under the KUAA and toefforts to compel arbitration under theFAA.9 In Stutler,10 the Court held thatwhile an agreement to arbitrate is validas a matter of federal law, state law willgenerally govern issues concerning thevalidity of the contract and defenses,including fraud, duress, and uncon-scionability.11 Accordingly, the Courtheld that a district court erred in apply-ing federal common law rather thanstate law as to contract defenses.

The FAA and the KUAA appear to befor the most part harmonious. For exam-ple, Kentucky excludes employmentagreements from those arbitration agree-ments which may be enforced under theKUAA. The FAA has a similar, but notidentical provision in 9 USC §1 whichexempts from its coverage, “contracts ofemployment of seamen, railroademployees, or any other class of work-ers engaged in foreign or interstatecommerce.” In Gilmer v.Interstate/Johnson Lane Corporation,12

the U. S. Supreme Court held that anemployment agreement to arbitrate alldisputes, including statutory ones aris-ing under the Federal AgeDiscrimination in Employment Act, wasarbitrable because the agreement to arbi-trate was embedded in a registrationagreement between the employee andthe New York Stock Exchange, andhence was not technically an employ-ment agreement at all. Later, citingGilmer, the Kentucky Court of Appealsheld that the very same registrationagreement between an employee and theNew York Stock Exchange also justifiedthe enforcement of an agreement toarbitrate claims of sexual harassment,retaliation, and equal pay violationsasserted by a registered broker againsther employer.13 But, the Court held thatallegations of rape and battery against aco-worker which formed the basis forher statutory claims of sexual harass-ment were not subject to the agreementto arbitrate because those acts, if true,are “independent of the employmentrelationship.”14 Recognizing that the

ARBITRATION


result left the parties to litigate someclaims in court and to arbitrate others,the Court of Appeals, again citing Cone,observed “that it is the FAA and thecontract which requires the piecemealresolution.”15

A question left unanswered by thecourt in Gilmer was whether an agree-ment to arbitrate contained in atraditional employment agreement couldbe enforced under the FAA since theagreement in Gilmer was one between abrokerage’s employee and the NewYork Stock Exchange. That questionwas answered 10 years later in CircuitCity Stores, Inc. v. Adams,16 where theCourt held that the exemption from cov-erage of the FAA contained in 9 U.S.C.§1 for “contracts of employment of sea-men, railroad employees, or any otherclass of workers engaged in foreign orinterstate commerce” was limited toworkers directly involved in transporta-tion. The Supreme Court did not equatethe use of the words “in foreign or inter-state commerce” in 9 U.S.C. §1 asco-extensive with the power of Con-gress under the Commerce Clause of theU.S. Constitution.17

The limited exemption for contractsof employment of transportation work-ers is not found in the KUAA whichexempts all employment contracts fromits ambit.18 But, the Kentucky Court ofAppeals recently held, on remand fromthe Kentucky Supreme Court, that acontract of employment which includedan arbitration provision could beenforced in Kentucky despite theexemption.19 There, an employmentagreement contained a provision requir-ing arbitration of disputes. Ultimately,an arbitrator’s award provided relief forboth the employer and the employee,and the award was confirmed by theCircuit Court. The Court of Appealsaffirmed confirmation of part of theaward and reversed part. The KentuckySupreme Court granted a motion fordiscretionary review, vacated the deci-sion of the Court of Appeals, andremanded to the Court of Appeals toreconsider whether the exclusion inKRS §417.050 for arbitration agree-ments between employers andemployees applied. On remand, theCourt of Appeals held that KRS

§417.050 excludes employment agree-ments from its coverage, but that doesnot limit Kentucky courts from enforc-ing these provisions. The Court ofAppeals held that the statutory exclu-sion does not pre-empt ordinary contractprinciples from applying, but only limitsthe use of the procedural rules set forthin the KUAA from applying to employ-ment agreements. The Court also notedthat both parties had relied upon variousprovisions of the KUAA throughout theproceedings, though the Court ofAppeals did not characterize thatreliance as a waiver or a post-disputeagreement to arbitrate. Nor did theCourt of Appeals mention the FAA as abasis for its holding, though the FAAprobably would have applied. At thetime of the writing of this article no fur-ther motion for discretionary review hasbeen filed.

An interesting outgrowth from Jacobv. Dripchak and Circuit City v. Adams isthe possibility that employers andemployees in the transportation industryin Kentucky may seek to enforce agree-ments to arbitrate under ordinary contractprinciples, eschewing both the FAA andthe KUAA because both exclude suchcontracts from their coverage.

That agreements to arbitrate requirethe consent of the parties may seemobvious, but the application can some-times take interesting twists. Forexample, the Kentucky Court ofAppeals in Olshan Foundation v. Otto,20

held that an action by homeowners forbreach of warranty contained in a con-tract with the home builder was requiredto be arbitrated despite the fact that thehomeowner was not a signatory to thecontract. The homeowners by seeking toenforce warranties contained in theagreements between the previous home-owners and the contractor were held tobe estopped from denying the arbitralchoice of dispute resolution contained inthe contracts at issue when they soughtother benefits of those agreements.21

The receipt of a direct benefit from thecontract by the non-signatory operatedas an acceptance of all of the terms. TheCourt quoted with approval the stan-dards set forth by the Court of Appealsin Thomson-CSF v. American Arbitra-tion Association: “Five theories for

binding non-signatories to arbitrationagreements have been recognized: (1)incorporation by reference, (2) assump-tion, (3) agency, (4) veil-piercing/alterego, and (5) estoppel.”22

The estoppel theory and the decisionof the Court in Thomson-CSF v. Ameri-can Arbitration Association wasadopted by the Kentucky SupremeCourt in North Fork Colleries, LLC v.Hall,23 when it held that third party ben-eficiaries of a contract containing anarbitral dispute resolution mechanismwere bound by that agreement even ifother rights of other parties underrelated agreements were not subject toarbitration. The Court noted that theparties could have specifically opted fora provision to stay arbitration while oth-ers not subject to arbitration can litigatetheir sides of the dispute, but in theabsence of such an agreement relatedlitigation should be stayed to allow forarbitration.24

But in Stolt-Nielsen S.A. v Ani-malfeeds International Corp.,25 theCourt held that an agreement to arbitratea class action dispute would not beinferred from an otherwise enforceableagreement to arbitrate because while anarbitrator may adopt procedures neces-sary to give effect to the intent of theparties, it simply cannot be inferredfrom the fact of an agreement to arbi-trate a bilateral dispute that there is anagreement to arbitrate a complex classaction. The Court relied heavily uponthe fact that there could be thousands ofclass members asserting many disputes,and that the award of the arbitratoradjusts the rights of the actual parties tothe agreement but perhaps hundreds orthousands of non-parties as well.

Procedural Developments.Under both federal and state arbitra-

tion laws appeals may be taken frominterlocutory orders denying a motion tocompel arbitration or to stay litigation infavor of arbitration, or confirming, mod-ifying, or vacating awards ofarbitrators.26 By the same provisions,however, appeals may not be taken frominterlocutory orders compelling ordirecting arbitration or refusing toenjoin arbitration.

The choice available to a party seek-

ing to compel arbitration is frequentlynot “either/or” as in FAA or KUAA.Rights asserted under the FAA must beasserted in state and federal courts asdefenses, and both federal and statecourts are obliged to honor the federalpreference for arbitration, but theyremain free to apply state contract lawto this federal preference.27

There is no jurisdictional componentto the FAA. It creates no independentcause of action. The same is true withthe KUAA except for the jurisdictionallimitations of KRS 417.200 which werethe subject of an interesting case at theKentucky Supreme Court. In Ally Cat,LLC v. Chauvin,28 Ally Cat purchased acondominium, out of which it intendedto operate a medical practice. There wasno arbitration agreement between AllyCat and the seller. Later the Homeown-ers Association and the sole member ofAlly Cat signed a homeowners’ war-ranty containing an agreement toarbitrate, and referencing the KUAA.Ally Cat later asked the seller to repairleaks in the roof which were not per-formed to its satisfaction and then suedthe seller for breach of the sale contract,fraud, and negligence. Ally Cat did notseek relief under the warranty. The Cir-cuit Court, on motion of the defendant,compelled arbitration and the Court ofAppeals denied Ally Cat’s motion forinterlocutory relief. Ally Cat then filed apetition for writ of prohibition becauseas acknowledged by the Supreme Court,“an order compelling arbitration under avalid arbitration agreement is, ordinar-ily, not appealable.”29 Ally Cat arguedthat because of KRS 417.200 the circuitcourt lacked jurisdiction in the firstinstance, thereby making relief viaextraordinary writ appropriate.30 KRS417.200, the statute governing jurisdic-tion, states in salient part, “[t]he makingof an agreement described in KRS417.050 providing for arbitration in thisstate confers jurisdiction on the court toenforce the agreement under this chap-ter…” The Kentucky Supreme Court,citing with approval Tru Green Corp. v.Sampson,31 and Artrip v. Samons Con-struction, Inc.,32 held that when anagreement to arbitrate does not explic-itly state that the arbitration is to beconducted in Kentucky, then the circuit

court lacks jurisdiction to compel arbi-tration even, when as here, theagreement to arbitrate references theKUAA.33 The Court specifically with-held making the same judgment whenthe case before it was on a motion toenforce an arbitration award, where thearbitration did not occur in Kentucky.34

Additionally, because the seller wasnot a signatory to the homeowners war-ranty containing the arbitrationprovision and because Ally Cat waslikewise not a party (Ally Cat’s solemember signed it in her own name) theCourt went on to hold that the agree-ment to arbitrate otherwise failed tomeet the requirements of KRS 417.050.Moreover, because the warranty waslimited only so long as the unit wasused for a residence, the Court con-cluded it did not apply as the unit wasused for business.35

Two cases which discuss appellateprocedures are worth noting. In KindredHospitals Limited Partnership v.Lutrell,36 administratrix of an estatesued a nursing home for negligence and

wrongful death of her mother, and nurs-ing home unsuccessfully sought tocompel arbitration under the KUAA incircuit court. Appellant sought relief inthe Court of Appeals under CR 65.07 byfiling a motion for intermediate reliefwhich was denied by the Court ofAppeals as not being authorized byKRS 417.220. A similar motion wasfiled in the Kentucky Supreme Courtunder CR 65.09. The Supreme Courtreviewed the appellate provision of theKUAA which provides that “the appealshall be taken in the manner and to thesame extent as from orders or judg-ments in a civil action,” and noting thevagueness of the statute rejected therequirement that a notice of appeal (setforth in CR 73) must be filed underKRS 417.220(2). Rather, the Court con-cluded that KRS 417.220(2) authorizedboth modes of appellate redress from anorder refusing to compel arbitration.Either CR 65 or CR 73 could be used.37

When using CR 65, however, a highburden must be met in order to obtainrelief – if irreparable injury is lacking



relief may be denied. On the other hand,party can invoke the court’s appellatejurisdiction pursuant to the normalprocesses of CR 73 which of course arelengthier and without a stay could resultin an appellate decision that comes toolate. Finally, the Court held that whileKRS 417.220 allows for two separateappellate paths, an appellant may useonly one.38

Just last year, the Court, whileaccepting that there are two separateappellate paths for parties to appealfrom orders denying arbitration, seem-ingly loosened the strictures of usingCR 65.07 or CR 65.09 in North ForkColleries, LLC. V. Hall.39 There theCourt held that, when faced with amotion to compel arbitration, the court’sjob is to determine if in fact an agree-ment to arbitrate was reached andwhether said agreement applies to theinstant dispute. When it does, referenceto arbitration is required.40 The Courtthen seemed to back away from itsobservations in Kindred Hospitals41 thatthe risk of proceeding under CR 65 car-

ries with it the possibility of not beingable to prove a right to extraordinaryrelief, observing that when the partyseeking to compel arbitration assertsthat its bargained for right of an arbitralforum will be denied if arbitration is notcompelled then it has met its burdenunder Kodak Mining Corporation v.Carrs Fork Corporation.42 The courtthen rationalized its prior holdings inKindred Hospitals and Oakwood MobileHomes v. Sprowls43 by noting that inthose cases the equitable claim assertedby the party seeking arbitration reliedon the cost and delay of litigation ratherthen being deprived of its contractualbargain to an arbitral forum.

If the Court’s explanation of the dif-ferences between North Fork Collerieson the one hand and Kindred Hospitalsand Oakwood on the other holds true infuture cases, it will place a premium onparties seeking to compel arbitration tomake it clear that their equitable injuryis to the benefit of their bargain, and notto the cost and delay associated withlosing that bargain.

Finally, another recent developmentis found in the Kentucky SupremeCourt’s decision in Ernst & Young, LLPv. Clark,44 petition for writ of certioraridenied.45 There, a financially distressedworkers compensation self-insurancefund was placed into rehabilitationunder Kentucky’s Insurers Rehabilita-tion and Liquidation Laws (“IRLL”).46

Under the IRLL the Commissioner ofthe Kentucky Department of Insuranceserves as the rehabilitator. The rehabili-tator and members of the fund sued theformer auditor of the fund allegingaccounting malpractice which caused orsubstantially caused the near financialcollapse of the fund. The KentuckySupreme Court held that the agreementto arbitrate between the fund and itsauditors was binding on the members ofthe fund because they assented to theagreements as a condition of their appli-cation to join the fund.47 However, theCourt refused to compel arbitration ofthe rehabilitator’s claims because theMcCarron Ferguson Act48 “establishes adoctrine of reverse pre-emption thatexpressly exempts from federal preemp-tion state statutes enacted to regulateinsurance, leaving the regulation ofinsurance to the individual state.”49

Relying on Humana Inc. v. Forsythe50

and Stephens v. American Int’l Ins.Co.,51 the Court held that the FAA didnot regulate the business of insurance,that the IRLL was intended to regulatethe business of insurance, and thatbecause the FAA would “invalidate,impair, or supersede” Kentucky’s IRLL,it was subject to reverse pre-emption.

ConclusionThe evolution of the law of arbitration

is now in a second, maturing phase. Thefirst phase was establishing in state andfederal jurisprudence the concept of apreference for the enforcement of privateagreements to settle disputes througharbitration, rather than through judiciallitigation. In that first phase appellatecourts generously enforced arbitrationagreements. In the current second phase,the limits to what the courts will enforceare being set as lawyers and their clientsare less inclined to litigate what hasalready been established. Now, the litiga-tion tests the nuances. For those lawyers

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engaged in litigating and drafting arbitra-tion agreements the challenge is nowmuch greater; i.e., to master the nuancesof the limitations that arise in the matu-rity phase of the development of the lawof arbitration.

ENDNOTES1. The scope of this article covers the

development of the law of arbitra-tion in Kentucky. The principalsources for the evolution of the lawin Kentucky are the Federal Arbi-tration Act, 9 USC§ 1, et seq., andthe Uniform Arbitration Act, KRS§417.045, et seq. The article doesnot address developments in thelaw under collective bargainingagreements between employers andlabor unions in the private sector,which are subject to the federalcommon law as it has developedunder Section 301 of the LaborManagement Relations Act, 29USC §185. Textile Workers Unionv. Lincoln Mills of Alabama, 353U.S. 448 (1957).

2. 9 USC §2.3. KRS § 417.050. 4. 132 S.W.3d 850, 854 (Ky. 2004).5. Harker v. Federal Land Bank, 679

S.W. 2d 226, 229 (Ky. 1984). 6. Moses H. Cone Memorial Hospital

v. Mercury Construction Corp., 460U.S. 1, 24-25 (1983) (hereinafterreferred to as “Cone”).

7. 132 S.W.3d 850, 855 (Ky. 2004).8. Id. at 854. The Kentucky Supreme

Court adopted the U. S. SupremeCourt’s holding in Prima PaintCorporation v. Flood and ConklinMfg. Co., 388 U.S. 395 (1967).

9. Oakwood Mobile Homes, Inc. v.Sprowls, 82 S.W. 3d 193(Ky.2002). See also Seawright v. Ameri-can General Finance Services, Inc.,507 F.3d 967, 972 (6th Cir. 2007);Stutler v. T.K. Constructors, Inc.,448 F.3d 343, 345 (6th Cir. 2006).

10. 448 F.3d 343 at 345.11. Id. See also Perry v. Thomas, 482

U.S. 483, 492 n.9 (1987) quoted bythe Court of Appeals for the propo-sition that that federal law requiresthe enforcement of agreements toarbitrate unless the savings clauserequires otherwise.

12. 500 U.S. 20 (1991).13. Hill v. J.J.B. Hilliard, W.L. Lyons,

Inc., 945 S.W. 2d 948 (Ky. App.1996).

14. Id. at 952. 15. Id.16. 532 U.S. 102 (2001).17. Id. at 115-116. 18. See KRS §417.050.19. Jacob v. Dripchak, et al.,___ S.W.

3d___, No. 2008-CA-001157 -MR(January 21, 2011).

20. 276 S.W. 3d 827 (Ky. App. 2009).21. Id. at 831. 22. 64 F.3d 773, 776 (2d Cir. 1995).

See also the Court’s reliance onJavitch v. First Union Securities,Inc., 315 F.3d 619 (6th Cir. 2003).

23. 322 S.W.2d 98, 106 (2010).24. See the Court’s reliance on Volt

Information Services, Inc. v. Stan-ford University, 489 U.S. 468(1989); Rodriguez v. AmericanTechnologies, Inc., 136 Cal.App.4th

1110, 39 Cal.Rptr.3d 437 (2006). 25. ___ U.S.___, 130 S.Ct. 1758

(2010).26. 9 U.S.C. §16; KRS §417.220. 27. Seawright v. American General

Finance Services, Inc., 507 F.3d967, 972 (6th Cir. 2007); Stutler v.T.K. Constructors, Inc., 448 F.3d343, 345 (6th Cir. 2006); OakwoodMobile Homes, Inc. v. Sprowls, 82S.W. 3d 193(Ky. 2002). See alsoKruse v. AFLAC International,Inc., 458 F. Supp. 2d 375 (E.D.Ky., 2006)(“Generally, state lawprinciples that govern the forma-tion of contracts will apply…Indeciding whether the parties agreedto arbitrate a dispute, the courtexamines the applicable state con-tract law[citation omitted].However, the federal policy favor-ing arbitration is taken intoconsideration even in applyingordinary state law.”) Id. at 382.

28. 274 S.W. 3d 451 (Ky. 2009). 29. Id. at 454. 30. See the Court’s reliance on

Hoskins v. Maricle, 150 S.W. 3d1, 10 (Ky. 2004) (“a writ of prohi-bition may be granted ‘upon ashowing that … the lower court isproceeding or is about to proceedoutside of its jurisdiction and

there is no remedy through anapplication to an intermediatecourt.’”)

31. 802 S.W.2d 951, 952 (Ky. App.1991).

32. 54 S.W.3d 169, 171 (Ky. App.2001)

33. Id. at 455.34. Id. at 456.35. Id.36. 190 S.W. 3d 916 (Ky.2006).37. Id. at 920. 38. Id. at 921. Though the Supreme

Court disagreed with the rationaleused by the Court of Appeals itultimately affirmed the Court ofAppeals decision to deny arbitra-tion because the appellant failed toshow extraordinary cause asrequired by CR 65.09. Id. at 922.

39. 322 S.W. 3d 98 (Ky. 2010). 40. Id. at 102. 41. 190 S.W.3d 916 (Ky. 2006).42. 669 S.Wd. 2d 917 (Ky. 1984). 43. 82 S.W.3d 193 (Ky. 2002).44. 323 S.W.3d 682 (Ky. 2010).45. ________U.S.___________(Feb,

2011).46. KRS Ch. 304.33.47. Ernst & Young, supra at 694-5.48. 15 U.S.C. §1011. et seq.49. Id. at 688.50. 525 U.S. 299 (1999).51. 66 F.3d 41, 43 (2d Cir. 1995)(inter-

preting Kentucky law)

Walter L. Salesis a member inStoll KeenonOgden’sLouisville office.Sales focuseshis practice onlabor andemployment

law, as well as insurance receiver-ship litigation. He has vastexperience in handling casesagainst the Equal OpportunityEmployment Commission. Sales hastried more than 20 cases to a juryverdict, and has argued more than60 appeals to state and federalappellate courts. He has repre-sented employers in more than 50union organizing drives in 10 states.



By Richard H.C. Clay and Stephen J. Mattingly

B ringing up arbitration at a cock-tail party is more likely toprovoke yawns than excitement,

even when one is in the company of fel-low members of the bar. But as mostevery litigator is aware, arbitrationissues have become nearly ubiquitous inlitigating everything from commercialbreach-of-contract disputes to employ-ment-discrimination claims. In manycases, whether claims are subject to anarbitration agreement may be a “makeor break” issue – one that can determinewhether a lawsuit is worth bringing,whether or when a defendant should set-tle a case, or whether a particulardefendant or cause of action should beincluded in a complaint.

The scope of an arbitration clause –i.e., what claims fall within the lan-guage of the provision – frequently isthe lynchpin issue in determiningwhether a party’s claims are subject tomandatory arbitration. Those whoundisputedly entered into an agreementto arbitrate have little hope of resistingarbitration unless they can argue suc-cessfully that their claims fall outsidethe scope of the particular arbitrationagreement. Traditionally, however,those arguing that their claims are out-side the scope of a valid andenforceable arbitration clause havefaced an uphill battle with a limitedlikelihood of success. Courts have con-sistently held that the FederalArbitration Act (or an equivalent statelaw, if the FAA does not apply1) mani-

fests a presumption in favor of arbitra-tion and that this presumption requiresthe scope of an arbitration clause to bebroadly construed.2 A recent UnitedStates Supreme Court case, GraniteRock v. International Brotherhood ofTeamsters,3 may at first blush call intoquestion the continuing strength of thispro-arbitration presumption. A closerlook at the case and a subsequent fed-eral court of appeals opinion, however,reveals that the presumption in favor ofarbitration is still intact.

Granite Rock v. InternationalBrotherhood of Teamsters

Granite Rock is one of several casesdecided by the United States SupremeCourt in the last year that has thepotential to affect practitioners facingany number of arbitration-relatedissues. In Granite Rock, which wasdecided in June 2010, the Courtendeavored to clarify the proper frame-work for determining when particulardisputes are subject to arbitration.While essentially synthesizing priorSupreme Court precedent, the GraniteRock Court did stake out some newground by elucidating several broadprinciples concerning the interpretationand enforceability of arbitration provi-sions. First, the Court made it clear thatthe presumption in favor of arbitrationhas no applicability to the question ofwhether a contract containing an arbi-tration clause was ever formed in thefirst place. Because arbitration is“strictly a matter of consent,” a court isrequired to address a party’s argumentthat no agreement containing an arbitra-

tion provision was ever reached. Subse-quent federal appellate decisions haveconfirmed this interpretation of GraniteRock.4 Thus, Granite Rock establishesthat the resolution of disputed questionsas to whether such an agreement wasreached is not subject to determinationby an arbitrator, and instead is a matterto be determined by a court.

However, Granite Rock maintainsthat the presumption in favor of arbitra-tion remains applicable todeterminations about the scope of avalidly formed arbitration clause. To besure, the Court appeared to downplaysomewhat the strength and importanceof the pro-arbitration presumption. Itstated that it was “wrong to suggest thatthe presumption of arbitrability wesometimes apply takes courts outsideour settled framework for deciding arbi-trability.”5 It stated that the Court hadnever held that the pro-arbitration pol-icy overrides the principle thatarbitration is strictly a matter of con-sent, and that courts may not “usepolicy considerations as a substitute forparty agreement.”6 Additionally, theCourt noted that any pro-arbitrationpresumption is simply derived from theconclusion that a broadly worded arbi-tration clause reflects that the partiesintended to arbitrate grievancesbetween them.

Nonetheless, the Court ultimatelyappeared to endorse the continuing via-bility of this presumption whenever it isdetermined that the parties have agreedto an arbitration clause and that theclause is ambiguous as to whether itcovers a particular dispute: “We haveapplied the presumption favoring arbi-tration, in FAA and in labor cases, onlywhere it reflects, and derives its legiti-macy from, a judicial conclusion thatarbitration of a particular dispute is whatthe parties intended because theirexpress agreement to arbitrate wasvalidly formed and (absent a provisionclearly and validly committing suchissues to an arbitrator) is legallyenforceable and best construed toencompass the dispute.”7

But the Court’s interpretation of theparticular arbitration provision at issue

ARBITRATION


– which required arbitration of anyclaims “arising under” the parties’agreement – does somewhat call intoquestion the way the pro-arbitrationpresumption has been applied by lowerfederal courts. The Supreme Court heldthat the parties’ dispute about when theagreement containing the arbitrationclause was ratified was not itself arbi-trable because it could not be said thata dispute about when an agreementcame into existence “arises under” thatagreement.8 The Court mentioned thatthe “arising under” language was “rela-tively narrow,” and it rejected theNinth Circuit’s reasoning that theclause was “susceptible of an interpre-tation” which would require the disputeto be arbitrated.9

Pre-Granite Rock law on the pro-arbitration presumption

Thus, in the wake of Granite Rock,one might reasonably ask whether theCourt’s decision will alter the long lineof cases holding that a broad arbitrationclause leads to a presumption that theparties agreed to arbitrate any disputesnot clearly excluded from the terms ofthe agreement.

One such typical pre-Granite Rockcase is Kruse v. AFLAC International,where the United States District Courtfor the Eastern District of Kentuckycompelled the plaintiff, Kruse, to arbi-trate her claims against AFLAC andother defendants.10 (In full disclosure,one of the authors was counsel toAFLAC in that case.) Kruse – a formerregional sales coordinator for AFLAC –alleged breach of contract, violations ofstate and federal statutes, and a litany ofcommon law claims, including promis-sory estoppel, conversion, fraud,defamation, and tortious interference.Kruse argued, among other things, thather claims other than the breach of con-tract claim fell outside of the scope ofthe arbitration agreement she hadsigned. That agreement required Kruseand AFLAC to arbitrate “[a]ny disputearising under this Agreement to themaximum extent allowed by applicablelaw.” The court disagreed with Kruseand held that her claims were within thescope of this agreement. “The test todetermine if a claim falls within the


scope of an arbitration clause is todetermine if the factual allegations‘touch matters’ governed by the parties’Agreement, not what claims the Agree-ment specifically mentions as plaintiffcontends.” The court relied in part onprior Sixth Circuit cases holding that,where the parties agreed to arbitrate dis-putes “arising out of” the parties’contract, any claim between themshould be arbitrated unless there is“clear intent to exclude a particularclaim.”11

Because all of Kruse’s claimstouched on her business relationshipwith AFLAC, and the agreement didnot manifest any intent to exclude anyof her claims from arbitration, the courtfound all of Kruse’s claims to be arbi-trable. The court specifically rejectedKruse’s argument that claims were notarbitrable unless their subject matterwas specifically made arbitrable by thecontract. Although Kruse argued thatthe clause did not “govern disputesbeyond violation of specific terms ofthe Agreement,” the district court didnot agree. Rather, it found that all of

Kruse’s claims were covered by thearbitration clause because the factualallegations supporting the claims per-tained to Kruse’s contract with AFLACin some way.

A post-Granite Rock decisionA review of a recent Sixth Circuit

opinion suggests that, even after Gran-ite Rock, decisions like Kruse willcontinue to be the norm whenever it isclear that the parties agreed to a broadarbitration provision. This opinion sug-gests that the judiciary does not believeGranite Rock altered the general rulethat a broad arbitration provision is pre-sumed to encompass any substantivedisputes between the parties that are notexpressly excluded from arbitration bytheir agreement.

In Teamsters Local Union No. 89 v.Kroger, 617 F.3d 899 (6th Cir. 2010), acase decided two months after GraniteRock, the Sixth Circuit reiterated itsprior holdings to the effect that “wherethe agreement contains an arbitrationclause, the court should apply a pre-sumption of arbitrability, resolve anydoubts in favor of arbitration, andshould not deny an order to arbitrateunless it may be said with positiveassurance that the arbitration clause isnot susceptible of an interpretation thatcovers the asserted dispute.”12 (internalcitations omitted) The Sixth Circuitpanel in Kroger stated that the pre-sumption in favor of arbitration is“particularly applicable” in casesinvolving broad arbitration clauses andthat in such a case, “only an expressprovision excluding a particular griev-ance from arbitration or ‘the mostforceful evidence of a purpose toexclude the claim from arbitration’”can prevent a dispute from being arbi-trated.13 The court found that thearbitration provision before it – whichrequired arbitration of “any griev-ance[,] dispute[,] or complaint over theinterpretation or application of the con-tents of this Agreement” – was the typeof broad arbitration clause that wouldtrigger such a presumption. In sodoing, the court cited to prior casesholding that agreements requiring arbi-tration of claims “arising under” and“related to” an agreement were broad

arbitration agreements. It thereforerejected Kroger’s argument that arbi-tration was inappropriate because thesubcontracting dispute at issue wasoutside of the scope of the parties’arbitration clause. The court held thatbecause the parties’ arbitration agree-ment was “susceptible to aninterpretation” that would provide forarbitration of the dispute, the presump-tion in favor of arbitration controlled.14

The Kroger court did not referenceor cite to Granite Rock, and it thusappeared to believe that Granite Rockdid not require the Sixth Circuit torevisit its general rules that a broadarbitration clause triggers a presump-tion of arbitrability and that whenparties have agreed to such a provision,a dispute between them is arbitrableabsent clear evidence that the partiesintended the particular dispute to benon-arbitrable. As described above, this“susceptible to an interpretation” stan-dard was at least obliquely called intoquestion by Granite Rock, but the SixthCircuit in Kroger did not appear tobelieve that Granite Rock wouldrequire this standard to be revisited.Additionally, the Sixth Circuit citedfavorably to prior holdings that “arisingunder” language was broad – eventhough the Granite Rock Court termedsuch language “relatively narrow.”

A federal district court in Missourirecently reached a similar result whileciting to Granite Rock. In Utility Work-ers Union v. Missouri-American Water

Richard H.C.Clay is a partnerin the Louisvilleoffice of Dins-more & ShohlLLP, where he isa member of theBusiness andFiduciary Litiga-

tion Section. He is a graduate ofDavidson College and the Universityof Kentucky College of Law. A for-mer president of the Kentucky BarAssociation (1998-99) and a formerKBA Annual Convention chair(1991), Clay serves as Dinsmore’sKentucky ethics and loss preventionpartner. He has tried over 75 jurytrials to verdict, and has arguedover 35 appeals in the Sixth Circuit,the Kentucky Supreme Court andthe Kentucky Court of Appeals. Hehas also handled a number of arbi-trations. His practice is focused ongeneral business litigation, trust andestate disputes, broker/dealerissues, drug and medical device liti-gation and appellate practice.

Stephen J. Mat-tingly is anassociate in theLouisville officeof Dinsmore &Shohl LLP,where he is amember of theBusiness and

Fiduciary Litigation Section. He is agraduate of the University of NotreDame and the University ofLouisville Louis D. Brandeis Schoolof Law. Mattingly has experience inthe areas of business torts, medicalmalpractice defense, arbitrationagreements, criminal defense, fed-eral bank regulation, and insurance.


Co.,15 the district court upheld an arbi-trator’s determination that the parties’broadly phrased agreement to arbitrateencompassed a dispute over wageamount. The court observed that Gran-ite Rock “clarified the frameworkregarding the application of ‘the federalpolicy favoring arbitration.’”16 Never-theless, the Court favorably quotedprior decisions for the proposition thata broad arbitration clause triggers a pre-sumption that a dispute between theparties is arbitrable “unless it may besaid with positive assurance that thearbitration clause is not susceptible ofan interpretation that covers theasserted dispute.”17 Like the Sixth Cir-cuit in Kroger, the district court did notappear to believe that Granite Rockaltered the application of the presump-tion in favor of arbitrability in anysignificant way.

RamificationsWhat does this mean for the inter-

pretation of the scope of arbitrationprovisions after Granite Rock? InGranite Rock, the Supreme Courtappeared expressly to hold that a pre-sumption in favor of arbitration appliesonly when “a validly formed andenforceable arbitration agreement isambiguous about whether it covers thedispute at hand.”18 The Granite Rockdecision emphasized that the SupremeCourt “has never held that the presump-tion [in favor of arbitration] overridesthe principle that a court may submit toarbitration ‘only those disputes . . . theparties have agreed to submit . . . .”19

Kroger provides a clear indication thatcourts do not appear to believe thatGranite Rock’s clarification of the lawrequires alteration of the rule that cer-tain broadly phrased arbitrationprovisions trigger a presumption infavor of arbitrability.

Thus, provisions requiring arbitra-tion of any dispute “arising out of” or“relating to” a contract that governs therelationship between parties will likelygenerally continue to be construed toencompass most any claim between theparties that “touches on” matters in thecontract. Even though a party may becompelled to arbitrate “only those dis-putes” that the party has agreed to

arbitrate, this does not mean that thearbitration agreement needs to enumer-ate particular types of disputes to makesuch disputes arbitrable. The holdingsin cases such as Kruse – where thecourt held that arbitration is appropri-ate if the factual allegations underlyinga claim “touch matters” governed bythe agreement – therefore appear toremain sound even in light of GraniteRock.

Because Granite Rock is little overhalf-a-year old, it may be that futurelower court decisions will begin to readthe decision more broadly. But for now,it appears that prior decisions on thescope of a broad arbitration clauseremain good law.

ENDNOTES1. See, e.g., KRS 417.045 et seq. (the

Kentucky Uniform Arbitration Act)2. See, e.g., Glazer v. Lehman Bros.,

Inc., 394 F.3d 444, 450 (6th Cir.2005).

3. 130 S. Ct. 2847 (2010).4. See, e.g., Janiga v. Questar Capital

Corp., 615 F.3d 735, 741-42 (7thCir. 2010) (holding that GraniteRock “eliminated all doubt” aboutwhether a court is required todecide questions of whether anagreement to arbitrate was reachedin the first place).

5. Id. at 2859.6. Id.7. Id. at 2859-60. 8. Id. at 2862.9. Id.10. 458 F. Supp. 2d 375 (E.D. Ky.

2006).11. Id. at 387 (citing Cincinnati Gas &

Elec. Co. v. Benjamin F. Shaw Co.,706 F.2d 155, 160 (6th Cir. 1983)).

12. Id. at 904.13. Id. at 905.14. Id. at 909-11.15. 2010 U.S. Dist. LEXIS 111752;

189 L.R.R.M. 2718 (E.D.Mo. Oct.22, 2010).

16. Id. at *34.17. Id. (quoting United Steelworkers of

Am. v. Warrior & Gulf NavigationCo., 363 U.S. 574, 582-83 (1960)).

18. Granite Rock, 130 S. Ct. at 2858-59.

19. Id. at 2851.


By Donald K. Kazee

Two years ago, our Common-wealth observed the bicentennialof the birth of her estranged son,

Abraham Lincoln. On March 4th ofthis year, we marked the 150thanniversary of his inauguration as the16th president. On this second occa-sion, we may reflect that the mostfundamental legal writings are neithercourt opinions nor the briefs thatinform them, nor the statutes and con-stitutions upon which they in turn arebased, but are rather the conversationsbetween candidate and constituentnegotiating the contract of democracy.Lincoln was master of that medium ascandidate and president. But the penthat yet appeals to our better angels togive our last full measure of devotionserved an apprenticeship. That appren-ticeship teaches lessons which bear onall forms of legal writing.

Two letters announcing his candi-dacy for the Illinois legislature in 18321

and in 18362 offer contrasts in writingstyle and effectiveness. In 1832, Lin-coln introduced himself with earnesterudition:

Fellow-Citizens: Having become acandidate for the honorable office ofone of your representatives in the nextGeneral Assembly of this state, inaccordance with an established custom,and the principles of true republican-ism, it becomes my duty to make knownto you–the people whom I propose torepresent–my sentiments with regard tolocal affairs.

Time and experience have verified to

a demonstration, the public utility ofinternal improvements. . . .

There follow 10 tedious paragraphson the day’s issues: “internal improve-ments” (we would call theminfrastructure), public finance, usury,education, and estray laws, as well ason the candidate’s own youth and inex-perience. He gives the detailed meritsof each side in turn, as if to appeal tothe holder of every opinion. His ownstance is a matter of suspense until themerits are weighed, yet his choices areperplexing. Railroads are too expen-sive, so dredging the river is preferable,though that cost is yet unknown. As forlimiting usury,

A law for this purpose, I am of theopinion, may be made, without materi-ally injuring any class of people. Incases of extreme necessity, there couldalways be means found to cheat the law,while in all other cases it would have itsintended effect. I would not favor thepassage of a law upon this subject,which might be very easily evaded. Letit be such that the labor and difficulty ofevading it, could only be justified incases of greatest necessity.

Oscar Wilde might have written it forLady Bracknell.

At length Lincoln closes, adamant fordiffidence:

I was born and have ever remainedin the most humble walks of life. I haveno wealthy or popular relations to re-commend me. My case is thrownexclusively upon the independent voters

of this county, and if elected, they willhave conferred a favor upon me, forwhich I shall be unremitting in mylabors to compensate. But if the goodpeople in their wisdom shall see fit tokeep me in the background, I have beenfar too familiar with disappointments tobe very much chagrined.

He sounds like Woody Allen, CharlieBrown, or maybe Eeyore. Of course helost. None need expect clarity of visionor a sense of the practical from a 23-year-old novice, but the next four years’experience would transform his writing.In 1834, Lincoln did win election to theGeneral Assembly and began studyinglaw. His colleagues in the legislatureturned to the freshman to draft commit-tee reports and to articulate Whigpolicies.3 Politics milled away his stud-ied fugues, so that his letter announcinghis 1836 candidacy was a model ofdirectness:

In your paper of last Sunday, I see acommunication over the signature of“Many Voters,” in which the candidateswho are announced in the Journal, arecalled upon to “show their hands.”Agreed. Here’s mine!

This candidate needs no “establishedcustom” to justify “my duty to makeknown to you . . . my sentiments withregard to local affairs.” The people havecalled for a show of hands and Lincolnwastes no words to offer his.

I go for all sharing the privileges ofgovernment who assist in bearing itsburthens. Consequently, I go for admit-ting all whites to the right of suffrage,who pay taxes or bear arms (by nomeans excluding females).

Lincoln begs no one’s participial par-don to speak: “I go for . . . .” What hegoes for first are not six serpentine para-graphs on dredging the Sangamon, as in1832. He goes for broad democracy,saving the Sangamon for later.

Lincoln was running as a Whig in aheavily Democratic state, depending forsupport upon Democratic friends. Thehallmark of Jacksonian Democracy was


the expansion of suffrage beyond theelites by removing property require-ments for white men to vote.4 For manyWhigs, especially elites and Easterners,white manhood suffrage invited the bar-barians within the gates.5 By contrast,the Northwest was so egalitarian thatthere was even debate on opening thevote to non-naturalized Irish laborers asa way to attract settlers.6 A part of bothdebates was the injustice of calling mento militia service without granting themthe right to vote.7

Lincoln finesses the divisiveness oflabels by adopting an expansive view ofsuffrage in terms nearly everyone couldsupport. In two sentences, he declares afundamental equation of privilege withburden and specifies those burdenswhich earn the bearer a vote. He thusaffirms the elimination of the propertyqualifications which Illinoisans hadcome westward to escape.8 He offers avoice to the foreigner as well. He allowsthat even women might earn the fran-chise.9

Lincoln’s equation of privileges withburdens marks the means by which 18thcentury privileges and immunities heldby the propertied became 21st centuryrights held by all. As Whigs followedDemocrats to embrace a broader democ-racy, earning a stake in the democracyby taxes or arms brought into the foldhardscrabble whites like Lincoln, citydwellers without real property, aliens,and, in principle, women.10 Lincoln’sequation is significant not for the racerestriction that strikes today’s reader,but for being as expansive as it was. Byoperation of a fundamental principle,previously foreclosed classes could earnthat stake in democracy.

Lincoln articulates that principlewithout mentioning either Whigs orDemocrats, or property or citizenship.Yet all are encompassed within anappeal to the universal, without namingany category, save race. African-Ameri-can suffrage simply was not on thehorizon in 1836.11 Decades later, when astake for African-Americans was Lin-coln’s purpose at Gettysburg, he againspoke in the universal. There was noNorth, no South, no conqueror, noslave. There were only the honored dead

and the free and equal living.Having embraced the best of Jack-

sonian Democracy, Lincoln takes onesentence to spurn the worst:

If elected, I shall consider the wholepeople of Sangamon my constituents, aswell those that oppose, as those thatsupport me.

Jacksonian Democracy had beenbuilt on the victor taking the spoils. Lin-coln is no victor if he alienates theDemocrats. Lincoln’s Democracyincludes “the whole people,” regardlessof whom they supported. He will bearmalice toward none as the servant forall. What are the duties of the people’sservant?

While acting as their representative, Ishall be governed by their will, on allsubjects upon which I have the means ofknowing what their will is; and upon allothers, I shall do what my own judg-ment teaches me will best advance theirinterests. Whether elected or not, I gofor distributing the proceeds of the salesof public lands to the several states, toenable our state, in common with oth-ers, to dig canals and construct railroads, without borrowing money andpaying interest on it.

To listen and to exercise judgment isthe pledge of representative govern-ment. If Lincoln is elected, he will haveheard the people to “go for” internalimprovements financed by the sale offederal lands. The federal undertakingof internal improvements was, in fact,the Whigs’ signature issue in oppositionto President Jackson, who had famouslyvetoed the Maysville Road project inKentucky.12 From the Nullification Cri-sis to the Second Bank of the UnitedStates, debate in the 1830s focused onwhat the Constitution denied one sover-eign or another the power toaccomplish. But in Lincoln’s letter, theConstitution permits each sovereign towork in its own sphere, yet in tandem tofinance the people’s progress withoutresorting to debt. Finding a way for thesovereigns to work in tandem, and themoney to finance it, would be the greattask of his presidency.

Finally,

If alive on the first Monday ofNovember, I shall vote for Hugh L.White for president.

With message accomplished, Lin-coln delivers a punch line worthy ofStephen Colbert. First, he signals ajoke with the utmost somber piety: “If

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alive . . . .”13 Then he pledges to votefor the Senator playing Lucifer to Jack-son’s God. White was an erstwhileTennessee Democrat who had suc-ceeded to Andrew Jackson’s Senateseat. He did Jackson’s bidding in theSenate until the Tennessee legislaturenominated White for president in 1835,an office that Jackson held in gift forMartin Van Buren. Cast into outerdarkness, White was named by theWhigs as one of three regional candi-dates in an effort to total more electoralvotes than Van Buren. Imagine Hillaryversus Al Gore in 2000; Scooter Libbyversus Dick Cheney in 2008. Whitedid not even run in Illinois,14 but thatmade Lincoln’s barb the more outra-geous. Without mentioning partylabels, Lincoln skewers Jackson andmakes even Democrats laugh.

These two apprentice letters mayserve our own apprenticeships aslawyers:

First, less is more.Second, there is more to less than

meets the eye, and ultimately it meetsthe mind. Each sentence speaks in acontext calling upon the reader to sup-ply meaning that he may more readilyaccept in his own voice than in thewriter’s.

Third, the whole is more than thesum of its parts. We have examined the1836 letter sentence by sentence. Nowread the italicized text of that letteraloud. There is a structure pendant uponthe call of the people. The electors hav-ing earned their franchise are owed aduty by the elected to listen to thewhole people and to “dare to do ourduty as we understand it.”15 In only

seven sentences, Lincoln offers a con-tract of democracy between voters andtheir servants, plus a policy for progressbased on a practical reading of the Con-stitution. He tells us plainly what he isfor. He satirizes what he is against witha zinger.

Fourth, the divisive and inflammatorycan be given a more thoughtful recep-tion by appeal to fundamental principlesrather than surface flash points.

I go for all sharing the privileges ofgovernment who assist in bearing itsburthens. Consequently, I go for admit-ting all whites to the right of suffrage,who pay taxes or bear arms (by nomeans excluding females).

Earning the privilege by bearing theburden applied well enough to the land-less or to the foreigners who shared theload of building and defending Illinois,but the principle transcended the issuesof 1836. As Lincoln grew toward hisrole as Emancipator, he constantlyrevisited the principle of earning one’srights by bearing the burden. While it isindisputable that he held the contempo-raneous racial assumptions that we findrepugnant today, they are repugnanttoday only because he held to the equa-tion of privilege and burden despite thenear universality of those racial viewsamong whites:

I agree with Judge Douglas that he[the negro] is not my equal in manyrespects–certainly not in color, perhapsnot in moral or intellectual endowment.But in the right to eat the bread, withoutleave of anybody else, which his own

hand earns, he is my equal and theequal of Judge Douglas, and the equalof every living man.16

When African American handsturned to defending the Union followingthe Emancipation Proclamation, mostfamously at Fort Wagner, Lincolnunderstood what privilege had beenearned:

It will then have been proved thatamong free men, there can be no suc-cessful appeal from the ballot to thebullet; and that they who take suchappeal are sure to lose their case, andpay the cost. And then, there will besome black men who can rememberthat, with silent tongue and clenchedteeth, and steady eye, and well-poisedbayonet, they have helped mankind tothis great consummation; while, I fear,there will be some white ones, unable toforget that, with malignant heart, anddeceitful speech, they have strove tohinder it.17

Having borne the burden of battle in1863, African Americans had, in Lin-coln’s eyes, earned privileges that onlya new contract of democracy couldsecure. At Gettysburg, he invoked thefundamentals to propose that new con-tract for a new nation, conceived inliberty, and dedicated to the proposi-tion that all men are created equal.Just as the apprentice had appealed tothe fundamentals to remove distinc-tions among whites in 1836, the masterused those fundamentals in 1863 toreach beyond the day’s racial assump-tions toward a government of, by, andfor the people, the undifferentiatedpeople, the one people, the “wholepeople.” Lincoln lived to shepherd theThirteenth Amendment through Con-gress as the first chapter in the newcontract of democracy, thereby earninghis own emancipation and that of hisnation as well.

Fifth and finally, the finale is veryfinal. What do you want the reader torepeat as the book is closed? CompareLincoln’s apology for breathing in 1832with the howling Whig one-liner in1836. Yet we may here profit not only

Gary M. Weiss

E-mail: [email protected]

When it’s a question of persuasion...Gary Weiss has a passion to come to the right result.Listed in Best Lawyersin America; Personal Injury Legal MalpracticeAnd now one of only eight Kentucky lawyers named for mediation/arbitration

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from the works of the apprentice, butfrom that of the master, pleading forpeace on March 4, 1861:

I am loth to close. We are not ene-mies, but friends. We must not beenemies. Though passion may havestrained, it must not break our bonds ofaffection. The mystic chords of memory,streching from every battle-field, andpatriot grave, to every living heart andhearth-stone, all over this broad land,will yet swell the chorus of the Union,when again touched, as surely they willbe, by the better angels of our nature.18

At the close of Inauguration Day in1861, none could have foreseen thecountless patriot graves awaiting, norhow this president’s words would intime write upon every heart and hearth-stone. The 1836 letter is among themost important documents in all ofAmerican politics and law. It is a firstdraft for Gettysburg. It not only gives usan example of spare, strong style, itteaches a lesson in how a writer canconvey a message larger than the textitself. It reveals the “principles of truerepublicanism” by which a fledglinglegislator became the Lincoln thatbelongs to the ages.

ENDNOTES1. “To the People of Sangamo

County,” March 9, 1832. Lincoln:Selected Speeches and Writings 3-7(Don Fehrenbacher, ed., VintageBooks 1992).

2. “To the Editor of the SangamoJournal,” June 13, 1836. Lincoln:Selected Speeches and Writings 7-8(Don Fehrenbacher, ed., VintageBooks 1992).

3. David Herbert Donald, Lincoln 54(Simon and Schuster 1995); FredKaplan, Lincoln: The Biography ofa Writer 60-61 (HarperCollins2008).

4. Alexander Keyssar, The Right toVote: The Contested History ofDemocracy in the United States 41(Rev. ed. Basic Books 2009).

5. As the New York Journal of Com-merce had declared:“By throwing open the polls to

every man that walks, we haveplaced the power in the hands ofthose who have neither property,talents, nor influence in other cir-cumstances, and who require intheir public officers no higher qual-ifications than they possessthemselves. It would be a disgraceto the city and to republicanism if aticket so utterly unworthy as theirsshould succeed. . . . We cannotbelieve that we are so soon reducedto the condition of the Romans,when the popular voice was raisedagainst every honorable distinction;a voice which finally prevailed, tothe utter extinction of the Repub-lic.” New York Journal ofCommerce, November 7, 1829,reprinted in 5 A Documentary His-tory of the American IndustrialSociety 154-155 (John R. Com-mons, et al., eds., Cleveland, ArthurH. Clark Co. 1910-1911).

6. The Illinois Supreme Courtaffirmed the non-citizen’s right tovote in 1840, as the 1818 constitu-tion and related statutes referred to“inhabitants.” Spragins v.Houghton, 3 Ill. 377, 408 (1840)(argued for the Irish by StephenDouglas). The 1848 Illinois Consti-tutional Convention imposed acitizenship requirement, rejecting astrong effort to guarantee that rightto non-citizens in the new constitu-tion. Keyssar 27, 32.

7. Keyssar 30-32.8. While property qualifications had

been commonplace in the East,neither the Illinois constitutions of1818 or 1848 imposed any prop-erty or tax qualification on voting,although municipalities could.Keyssar 24-26.

9. David Herbert Donald considersthe parenthetical a throw-awayjoke. Donald 59. Yet Whigs had tograpple with the consequences fortax-paying women if the franchisewas a right that could be earned.Keyssar 36-37. A joke in the foun-dation paragraph of this tautlystructured letter is wholly out ofplace; Lincoln saves his humor forthe end. Rather, he explicitly recog-

nizes that a qualification not basedon gender has applicability towomen as well as men. Fidelity toprinciple could transcend conven-tional categories.

10. Keyssar 28-37.11. Donald 59; Keyssar 44-47.12. In the Illinois legislature just con-

cluded, Lincoln had cast the swingvote to finance badly needed rail-roads and river transportation withstate bonds, despite his prior reser-vations on public debt. As eventswould prove, the Panic of 1837would shatter Illinois’ massive pub-lic debt and Lincoln would besubject to his share of the blame.Donald 59, 61.

13. From our own perspective, any Illi-noisan pledging to vote only if alivedeserves to be called Honest Abe.

14. William Henry Harrison was theWhig candidate in Illinois in 1836,but Martin Van Buren carried Illi-nois and the election.

15. Cooper Union Address, February27, 1859. Lincoln: SelectedSpeeches and Writings 251 (DonFehrenbacher, ed., Vintage Books1992).

16. First Debate, Ottawa, Illinois,August 21, 1858. Lincoln: SelectedSpeeches and Writings 153 (DonFehrenbacher, ed., Vintage Books1992).

17. Letter to James C. Conkling,August 26, 1863. Lincoln: SelectedSpeeches and Writings 393 (DonFehrenbacher, ed., Vintage Books1992).

18. First Inaugural Address, March 4,1861. Lincoln: Selected Speechesand Writings 284 (Don Fehren-bacher, ed., Vintage Books 1992).


Donald K. Kazee is a graduate of theGeorgetown University Law Centerand is a member of the Kentuckyand District of Columbia Bar Associ-ations. He has taught at NorthernKentucky University Salmon P. ChaseCollege of Law since 1989. Duringthe Lincoln Bicentennial, he taughtLincoln’s Constitution at Chase Col-lege of Law.


COMMONWEALTH OF KENTUCKYJUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF:

HON. TAMRA GORMLEY, FAMILY COURT JUDGE

14TH JUDICIAL CIRCUIT

By agreement of the Commission and Judge Gormley:

1. Counts 1, 2, 3, 4, and 6 (and any claims and charges brought or which could have been brought relating thereto) are dis-

missed with prejudice.

2. As to Count V, Judge Gormley acknowledges the following:

a) After the Court of Appeals entered its Opinion, the Woodford County Attorney filed a motion to have a Special Judge

appointed to have the matter transferred to Rowan County for child support purposes.

b) Judge Gormley heard the matter on 3/11/10 and stated that she would take the motion under advisement.

c) Judge Gormley did not rule on the motion until August 3, 2010, when she asked for the appointment of a Special Judge.

Judge Gormley acknowledges that these facts, without further explanation, constitute a failure to comply with the Judi-

cial Canons.

3. As to Count V, the Commission imposes and Judge Gormley accepts a ten day suspension without pay. This suspension

shall run concurrently with the prior suspension of Judge Gormley now pending on appeal before the Kentucky Supreme

Court. This suspension shall be served even if the Supreme Court reverses the previous suspension.

Agreed to this 12th day of January, 2011

Hon. Tamra Gormley Stephen D. Wolnitzek, Chair

Judicial Conduct Commission

COMMONWEALTH OF KENTUCKYJUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF:

ALLAN RAY BERTRAM, CIRCUIT JUDGEELEVENTH JUDICIAL CIRCUIT, DIVISION II

ORDER OF PUBLIC REPRIMAND

Allan Ray Bertram is Circuit Judge for Kentucky’s Eleventh Judicial Circuit composed of Taylor, Marion, Washington, and

Green Counties. Judge Bertram has waived formal proof and has agreed to accept the disposition made in this order.

After receiving complaints and conducting an investigation, the Commission determined that Judge Bertram failed to render

timely decisions in a number of cases.

The Kentucky Code of Judicial Conduct, SCR 4.300, Canon 3B(8), provides: “A judge shall dispose of all judicial matters

promptly, efficiently and fairly.” The Commentary points out that Canon 3B(8) requires judges to be “expeditious in determin-

ing matters under submission.”

There was a pattern of delay in cases under submission in all four counties of Judge Bertram’s circuit. In these matters,

Judge Bertram violated 3B(8) of the Code of Judicial Conduct by failing to dispose of judicial matters promptly and efficiently.

In making the determinations in this order, the Commission duly considered that Judge Bertram had no prior infraction and

that he met with the Commission and discussed his docket in an attempt to address the delays, he changed his practices as rec-

ommended, and addressed the cases in question. The Commission will continue to monitor Judge Bertram’s court as to the sta-

tus of his case docket.

IT IS HEREBY ORDERED that for the foregoing violations Judge Allan Ray Bertram is hereby publicly reprimanded.

DATE: January 14, 2011 STEPHEN D. WOLNITZEK, CHAIR

AGREED TO :

ALLAN RAY BERTRAM



Dulaney L. “Del” O’Roark, Jr., hasadvised the Bench & Bar that aspart of “taking the next step

toward retirement” he has contributedthe last of 59 articleson the subject ofprofessionalresponsibility overthe past 20 years.

O’Roark was thefirst employee andfirst chief operatingofficer of Lawyers

Mutual, the KBA-sponsoredprofessional malpractice carrier.

O’Roark served as the chair of theKBA’s Ethics 2000 Committeeresponsible for recommending to theBoard of Governors numerous changesto the 1990 Kentucky Rules ofProfessional Conduct. Theserecommendations led to theimplementation of the 2009 RevisedKentucky Rules of ProfessionalConduct.

He has lectured in the KBA’s NewLawyers Program, addressed countlessdistrict bar meetings, and has taughtprofessional responsibility at both theUniversity of Kentucky College of Lawand the University of Louisville’sBrandeis School of Law.

O’Roark has made a lifetime study ofwhat can go wrong for lawyers. He saidin conversations about his retirementthat a “huge majority, more than 90percent – almost all – lawyers are asethical as they can be. The percentageof lawyers with ethical problems isminiscule.”

In his articles for the Bench & Barand in his quarterly newsletters forLawyers Mutual, O’Roark, has keptKentucky lawyers reliably informed oftrends in the three components of hisspecialty: professional responsibility,malpractice, and risk management.

In his articles, work-a-day Kentuckypractitioner readers have found insightson ethical issues not readily obtained

elsewhere, a dedicated advocate for theethical practice of law, an ally ofethical practitioners and, finally, ateacher.

He says he gathered his curriculumby working with policy-makers atLawyers Mutual, by attending nationalconferences on the subject, by what helearned from preparing and giving hislectures at law schools, and with directexchanges with Kentucky lawyers.

Like his father, O’Roark had a careeras an officer in the U.S. Army. Heretired as Brigadier General in 1989. Heis married to Jane O’Roark, the couplehas three children and fivegrandchildren, and reside in easternJefferson County.

In retirement, O’Roark plans toconsult with Lawyers Mutual on a part-time basis, continue bar service as amember of the KBA Member ServicesCommittee and the newly establishedParalegal Committee, while indulging hispassions for reading and gardening.

TTHHAANNKK YYOOUU TTOO MMRR.. DDEELL OO’’RROOAARRKK

THANK YOU to the Kentucky Bar Foundation Directors and the Kentucky IOLTA Fund Trustees

for the dedication and time devoted to ensure the continuing success of both programs.

OFFICERS

John W. Stevenson

President

John R. Martin, Jr.

President Elect

Eileen M. O’Brien

Vice President

Jane Adams Venters

Secretary/Treasurer

Phillip M. Moloney

Immediate Past President

Charles E. Ricketts, Jr.

IOLTA Chair

BOARD OF DIRECTORS

Gerald L. Bell

John D. Bertram

John N. Billings

David A. Brennen

Martha L. Brown

Keith M. Carwell

Charles H. Cassis

Judge Elizabeth Chandler

Frank P. Doheny

Diana Kay Douglas

William G. Francis

Fred E. Fugazzi, Jr.

Dennis R. Honabach

Catherine C. Hughes

Edward M. King

Norvie Lay

Frank Hampton Moore, Jr.

Harry D. Rankin

Tasha Kay Scott

Jonathan C. Shaw

Bruce E. Smith

Virginia J. Southgate

E. Frederick Straub, Jr.

Judge Jeff S. Taylor

J. Guthrie True

Judge Thomas D. Wingate

KENTUCKY BAR FOUNDATION

BOARD OF TRUSTEES

Charles E. Ricketts, Jr., Louisville (Chair)

Ken R. Haggard, Hopkinsville (Vice Chair)

Laura A. D'Angelo, Lexington (Treasurer)

Justice Lisabeth Hughes Abramson, Louisville

Stephen C. Cawood, Pineville

Luther Deaton, Jr., Lexington

Rhonda W. Huddleston, Warsaw

Anita P. Johnson, Pikeville

Scott D. Laufenberg, Bowling Green

Thomas L. Rouse, Erlanger

John W. Stevenson, Owensboro

I

O

L

T

A

Kentucky Bar Foundation

2010 Grants

$227,750

Kentucky IOLTA Fund

2010-2011 Grants

$590,000


“S ocial Media” are more and morea part of professional and per-

sonal life. Some jump in while otherswait to see what happens to those thatjump in.” It is a recurring story with alltechnologies. Yet we must consider thevelocity, scope and scale of thesechanges. In less than a generation we’vegone from a world-wide network onyour desk to one in your palm.

These technologies have a specialimpact due to the creation, exchange anduse of data, information and knowledge.Using the Twitter system for short state-ment instant messaging and notice, youcan be informationally linked to some-one or something as if right next to you.

Whether you want this or not isanother matter.

The impact of social media goes evenfurther. This expanded informationexchange affects relationships acrossmany domains. All kinds of relationships.While some social media may focus onnarrow matters, the hugely successfulones open up to the wide range of humaninterests, needs and aspirations. Just likesuccessful societies. It’s not about social-izing but about building a society.

Jumping InCasual play with these media tech-

nologies may be a good way to testthem and see what benefit, if any, theyoffer. We all recall innovative systemsthat seemed so promising yet just nevermade it in the marketplace of ideas andservices. While Facebook is a growing,important player in the social mediaspace, its predecessor, MySpace, isshrinking. An informed guess about thefuture of a technology helps reduce theodds you’ll put your time and moneyinto an also-ran.

But a cautious, planned approach isadvised for professionals stepping intothis arena.

First and foremost, there are ethical,legal and reputational risks in jumping inthe social media sea of information.Participation means putting informationout in the world with your name on it forall the world to see. The curious privacyand intimacy of a computer interface hastricked many into saying things care-lessly with harsh consequences. Thoughtand publication are almost simultaneousand nearly permanent, cached and storedall over the Internet.

So a reputation can be damaged inseconds. Especially for those with suc-cessful and popular media, as the fauxpas is heard by so many people instantly.

Informational tort issues also crop up,like defamation, invasion of privacy andfalse light. For a professional, the busi-ness aspects of information publicationmay raise risks of misleading or decep-tive trade practices or other forms ofmisrepresentation or, in some cases, mal-practice/professional liability exposure.

For professions with effective andenforced codes of professional ethics,this can be very risky. Most ethics codesdeveloped well before these new, amaz-ing media made everyone a FirstAmendment publisher, so how theyapply may be an open question. This isespecially tricky for lawyers, where 50different bar associations may choose tointerpret the rules many different ways,whether they relate to client relations,candor or “advertising.”

Kentucky has been an innovator inthis regard. The professional rulesexpressly permit lawyers to participate inweblogs without that being considered“advertising.” The lawyer must still com-

ply with the general rules, such as thoseon truthfulness. The Kentucky judicialethics authorities permit a judge to havea Facebook page and “friend” peoplewithout that by itself raising questions ofbias; other states differ on this.

This debate is a vitally importantone. In the electronic marketplace ofideas, is it really a good idea to limit theparticipation of those professionalstrained in reasoned analysis of impor-tant issues? Just as the participation oflawyers, judges and other professionalsin civic groups enriches the civic effec-tiveness of those organizations, thatsame participatory discourse can helpwith the online conversation. Too manyonline discussions veer into hyperbole,malice and the bizarre; a lawyer’s care-ful comments could help avoid that.

Testing the WatersAdopting social media is much like

a strategic planning session for businessor litigation, where you weigh the bene-fits against the risks, includingcompliance with legal and ethical stric-tures. One key factor to keep in mind isthat social media are not only aboutbusiness but all the forms of relation-ships folks might have.

First, you need to list why you wouldwant to participate in a social mediaenvironment, the standard goals-and-objectives exercise. What can the easyand quick exchange of information dofor you? That might be of help with:

1) professional and practice excel-lence;

2) business development;3) professional and community rela-

tionships;4) friends; and,5) family.

Michael Losavio

Socializing Media – The Adoption of Social Media By Professionals

SHOP TALK

This is a non-exclusive starter list,but it is certainly broader than the “busi-ness development” mantra that’s used topromote social media for professionals.Business is very, very, very important,but it’s not all about business. And oftenisn’t. Nicole Black, in her piece “FiveThings Lawyers Should Know AboutSocial Media,”i notes “people want tohire people, not a business” and that themix of social and professional make forhappier clients and happier lawyering.And happier lawyering is a good thing.

Second, start thinking about due dili-gence and risk analysis, theethical-legal-reputational chestnut thatmay get roasted in the pursuit of thesegoals. But not too hard, yet.

Third, research the tools that areavailable that may assist with thesegoals. There is a wide range of systemsfor social information exchange andsome are better suited for a particulargoal than others. For example, for pro-fessional and practice development theJDSupra site (Give Content. GetNoticed., at www.jdsupra.com) let’smembers upload and share legal docu-ments of all types, from employmentlaw to civil procedure. Legal updatefeatures are available.

JDSupra highlights an importantaspect of professional life that some-times gets lost in the maelstrom ofwork; lawyers helping lawyers helps usand everyone else.

Other sites may offer other features

that support these goals. LinkedIn(www.linkedin.com ) is a social mediasite expressly for business networking.Samantha Collier’s Social Media forLawyers blog, www.socialmediaforlawfirms.com, succinctly lists tips foroptimizing one’s LinkedIn profile, thevariety of LinkedIn applications thatmay benefit an attorney in many areasand image improvement for one’sFacebook through use of a “landingpage” for first time visitors.

Lastly check what others are doingand then try it yourself. Social mediaare useful for getting others opinions oneverything, including social media. It’slike a mini-jury deciding on the merits.What others say can guide you.

And then you try it yourself.Carefully. With a list of the rules of

professional responsibility, for all thepertinent regulatory authorities, next toyou. Especially the “Advertising” rules,as “Your Name” next to “Lawyer” orother professional designation may fallunder those rules, regardless of howattenuated it may seem to you.

Many of these services can be usedin a passive manner whereby youreceive information but don’t have tosubmit such. This can reduce the riskof a misstep while testing the benefits.But even their lawyers must be careful;in some circumstances even the receiptof information may run afoul of ethicsrules, like where that access to infor-mation is acquired through deceit. And,

again, if you are listed by your nameand profession, check to see there areno conflicts over advertising restric-tions.

You might then try these services outon a purely personal basis to avoid theethics/law entanglements. But remem-ber that the ethics rules follow youeverywhere. Florida, apparently, is nowincluding social media site reviews ofbar candidates as part of the characterand fitness examination.

But to get the most out of socialmedia requires full participation. TysonSnow, the Social Media Lawyer,(www.thesocialmedialawyer.wordpress.com) says that the issue needs tobe considered in a different and notpurely commercial light:

“Maybe the question needs to changefrom: ‘What has social media done forme today?’ to ‘What have I done forsocial media today?’ If you make valu-able contributions to the medium, themedium will reward you in spades.”

As in not what your country has donefor you but what you have done foryour country. Or society. Or community.Or family.

The potential for many good things.

ENDNOTE1. http://nylawblog.typepad.com/

suigeneris/2009/06/five-things-lawyers-should-know-about-social-media.html. Last visited Feb. 14,2011


Mark your calendarJune 15-17, 2011

KBA Annual Convention

Lexington


For the first time, the Supreme Courtof Kentucky has adopted uniform

rules for family law cases statewide,Chief Justice of Kentucky John D.Minton, Jr., and Deputy Chief JusticeMary C. Noble announced at a newsconference held January 13 at the stateCapitol.

The Family Court Rules of Procedureand Practice apply to all family lawcases, which are handled by FamilyCourt judges in 71 Kentucky countiesand by circuit and district judges in the49 other counties without a FamilyCourt. Family law cases include suchmatters as divorce, termination ofparental rights, domestic violence, childsupport, juvenile status offenses, adop-tion, and dependency, neglect or abuse.

The rules became effective Jan. 1,2011, and will have a significant impacton the practice of family law inKentucky.

Previously there were no statewiderules specifically for family law cases.Judges followed the Supreme CourtCivil Rules and created local family lawrules for their jurisdiction. The newrules are based on best practices indomestic and child welfare cases inKentucky courts. They provide a uni-form set of rules for judges, attorneysand parties to follow statewide to helpensure safety, permanency and well-being for children and families.

“These rules will change the wayfamily law is practiced in Kentucky,”Chief Justice Minton said. “The manyKentucky citizens involved in familylaw proceedings – some of the mostsensitive and difficult cases to comebefore our courts – will benefit from thededication and vision of Justice Nobleand all those who assisted with draftingthese rules.”

Justice Noble headed the initiative todevelop and recommend uniform rulesas chair of the Supreme Court CivilRules Committee. The Family CourtRules are a section of the civil rules.

“These rules represent the ongoingefforts of the Court of Justice to imple-

ment the FamilyCourt amendmentto our Constitution,which establishedour FamilyCourts,” JusticeNoble said. “Astime passes, wegrow closer to hav-ing a truestatewide FamilyCourt system. Thisis a developmentalproject we aremindful of anddetermined toachieve.”

The new familylaw rules were developed with inputfrom stakeholders, including SupremeCourt justices, Court of Appeals judges,Family Court judges, circuit and districtjudges, domestic relations commission-ers, circuit court clerks, family lawattorneys, the Cabinet for Health andFamily Services and community part-ners, including children’s advocacygroups.

The process began in May 2009,when the Supreme Court and theAdministrative Office of the Courtsjointly hosted a Civil Rules Conferenceto gather information from judges anddomestic relations commissioners toassist with drafting the rules. The con-ference focused on identifying the bestpractices in rules for family law casesand developing these rules as the stan-dard for all Kentucky courts.Approximately 80 justices, judges anddomestic relations commissioners par-ticipated in the discussions. Theycovered the areas of divorce and prop-erty; domestic violence; paternity; statusoffenders (juveniles who commit non-criminal acts such as running away fromhome); dependency, neglect or abuse;adoption and termination of parentalrights; and child custody, visitation andchild support.

As a result of the conferences, sixmultidisciplinary subcommittees were

formed to provide input and recommen-dations for drafting the new rules. Thesubcommittees were chaired by judgesand included representation from thecourts, social services, attorneys andother family law professionals.

The recommendations for the pro-posed rules was presented to theSupreme Court in April 2010 and pub-lished in the Kentucky Bar Associationmagazine, Bench & Bar, in May. Allattorneys licensed to practice inKentucky receive the magazine.Attorneys had the opportunity to provideinput on the proposed rules at a hearingduring the KBA Convention in June.

Domestic and child welfare cases arehandled by Family Court judges in the71 Kentucky counties with a FamilyCourt. In the 49 other counties, thecases are handled by circuit and districtjudges.

The proposed rules and feedbackfrom the KBA Convention were pre-sented to the Supreme Court inOctober 2010. The court voted inNovember to adopt the rules. A com-plete listing of the rules was publishedin the November 2010, issue of theBench & Bar.

Information provided by PublicInformation Specialist Jamie Ball of theAdministrative Office of the Courts.

SUPREME COURT OF KENTUCKY ADOPTS UNIFORMRULES FOR FAMILY LAW CASES STATEWIDE

Justice Mary C. Noble and Chief Justice John D. Minton, Jr.,discuss the new Family Court Rules during a recent pressconference held in the chambers of the Supreme Court ofKentucky in the state Capitol.


As approved by the KBA Board of Governors January 14, 2011

Publisher’s Note:Supreme Court Rule (SCR) 3.130 contains the Kentucky Rules of Professional Conduct which include rules onlawyer advertising. SCR 3.130(7.03) establishes an Attorneys’ Advertising Commission (the “Commission”)which has general responsibilities for implementing the lawyer advertising rules. In discharging its responsibili-ties, the Commission is given authority to issue and promulgate regulations subject to prior approval by the Boardof Governors. When proposed regulations are issued, members of the Kentucky Bar Association are entitled toat least sixty (60) days advance notice and an opportunity to comment. The Commission, with approval of theBoard of Governors, has promulgated an amendment to Regulation 2. It has also approved deletion of Regula-tion 3 because it has been superseded by amendments to the requirements of SCR 3.103(7.25). The Board ofGovernors approved these changes for publication on July 30, 2010. The amendment and deletion to the Regu-lations were published for comment in the September 2010 issue of the Bench & Bar. No comments werereceived. On January 14, 2011 the Board of Governors gave final approval for the changes to be implemented asoriginally published.

The following changes to the Regulations will be effective April 15, 2011.

The full Regulations of the Commission may be viewed at www.kybar.org, along with Frequently Asked Questions.

AAC Regulation No. 2: PERMISSIBLE CONTENT OF ADVERTISEMENTS SUBMITTED WITHOUT A FEEPursuant to SCR 3.130-7.05(1)(a)(26) the Commission may specify additional information that may be con-tained in advertisements that are permitted to be submitted without a fee. The following additional informationmay be included in any of these advertisements: …

11. The website address of a lawyer or law firm’s website advertisement, if the website has beensubmitted as required by SCR 3.130(7.05); …

Note: The only change is to subsection 11. The remaining portions of this Regulation were not amended. Theymay be viewed at www.kybar.org.

AAC Regulation No. 3:COMMUNICATIONS THAT REQUIRE THE DISCLAIMER “THIS IS AN ADVERTISEMENT”Deleted

ATTENTION:Amendment and Deletion to the Regulations of the

Attorneys’ Advertising Commission, pursuant to SCR 3.130(7.03)(5)(a)

By Amber PotterNKU Chase College of LawCommunications Coordinator

Chase Alumni Receive Awards

Congressman Steven J. Chabot ’78received the NKU Alumni

Association’s Outstanding ChaseAlumnus Award and Jonathan P.

Wright ’06 receivedthe OutstandingYoung AlumnusAward at the univer-sity’s annual AlumniAwards Banquet heldJanuary 28.

CongressmanChabot served as U.S.Representative for

Ohio’s First Congressional District for14 years, having been first elected in1994. After running successfully in2010 to reclaim his seat, he was swornin as congressman again on January 5.Chabot serves on the Committee on theJudiciary, the Committee on SmallBusiness, and the Committee onForeign Affairs where he serves as chairof the Subcommittee on the Middle Eastand South Asia. He is one of Congress’sleading advocates for fiscal responsibil-ity and is an outspoken defender ofindividual privacy rights. Prior to hisfirst election to Congress, Chabotserved on Cincinnati City Council andthe Hamilton County Commission forfour years on each body.

Wright was named by Secretary ofCommerce Gary Locke as a legislative

assistant with the U.S.Department ofCommerce’s Office ofLegislative Affairs. Hepreviously served asthe Obama campaign’sFlorida deputy politi-cal director during the2008 general electionand was the cam-

paign’s Kentucky political directorduring the primaries. A Kentucky

native, Wright was unable to accept hisaward in person because he was in Indiaadvancing the Secretary of Commerce’sthen upcoming High-Tech TradeMission.

Chase Welcomes New FacultyMember

David Singleton, executive directorof the Ohio Justice and Policy Center(OJPC) in Cincinnati, will join theChase faculty as a tenure-track assistantprofessor of law in the fall 2011. Hewill also retain his position as the

OJPC’s executivedirector.

Singleton receivedhis J.D., cum laude,from Harvard LawSchool in 1991 andhis A.B. in Economicsand Public PolicyStudies from DukeUniversity in 1987.

Upon graduation from law school, hereceived a Skadden Fellowship to workat the Legal Action Center for theHomeless in New York City, where hepracticed for three years. He thenworked as a public defender for sevenyears, first in Harlem and then in theDistrict of Columbia. After moving toCincinnati, Singleton practiced atThompson Hine before joining OJPCas its executive director in July 2002.

Singleton has been a visiting assis-tant professor at Chase since 2007. Hehas garnered numerous awards andrecognitionthrough hiswork with theOJPC, a non-partisan,nonprofit, pub-lic interest lawoffice, includinghis selection byHarvard LawSchool as aWassersteinFellow – whichrecognizesexemplarylawyers whohave distin-guished

themselves in public interest work – forthe 2006-07 academic year.

As a member of the Chase faculty,Singleton will teach complex problemsolving; facts, storytelling & persuasion;and contemporary issues in criminal jus-tice. He will continue to overseeChase’s Constitutional Litigation Clinic,which allows third- and fourth-year stu-dents to handle OJPC cases in federaland state court with supervision andguidance.

Chase Team Finishes as NationalArbitration Competition Runner-up

NKU Chase College of Law’sArbitration Team finished in secondplace at the American Bar Association’sNational Arbitration Competition heldJanuary 21-22 in Chicago, Ill. The teamearned the right to compete in thenational competition by winning aregional competition in November.

Alyse Bender, Jessica Biddle,Jonathan Davis, and MyLinda Simsdefeated teams from Stetson UniversityCollege of Law, Chapman UniversitySchool of Law, and Fordham UniversitySchool of Law. In the final round, theChase team lost a split decision toGeorgia State University College ofLaw. The team was coached byProfessor Richard Bales, director ofChase’s Center for Excellence inAdvocacy, with assistance fromProfessor Ljubomir Nacev, DavidBender ’79, Rebecca Cull ’08, andMarielle Peck ’10.

Salmon P. ChaseCollege of Law


KENTUCKY BAR NEWS

CongressmanSteven J. Chabot

Professor DavidSingleton

Jonathan P.Wright

ABA National Arbitration Competition Runners-up


KENTUCKY BAR NEWS

University of Kentucky College ofLaw Students to provide Income TaxPreparation Assistance.By Amanda DeBord, Director ofCommunications, UK College of Law

A group of students from theUniversity of Kentucky College of

Law and the UK Gatton College ofBusiness and Economics is preparingfor income tax season, not by gettingtheir own paperwork in order, but byundergoing a series of online trainingprograms to ready themselves for thehundreds of individuals who will takeadvantage of the University ofKentucky Volunteer Income TaxAssistance (VITA) Program.

About 45 students, led by UKAssistant Professor of Law JenniferBird-Pollan, began preparing incometax returns on February 21, in the base-ment of the University of KentuckyLaw Building. Last year, the program’sstudents prepared returns for over 650low-income households, and generatedover one-fifth of the total returns filedthrough the Central Kentucky EconomicEmpowerment Project (CKEEP), earn-ing them the Collegiate Challengetrophy for most returns prepared by avolunteer tax program in Kentucky.Based on CKEEP’s estimates, UK stu-dents saved Lexington-area taxpayersapproximately $137,000.

The cost of tax preparation is a bar-rier to many in the community who areeither unable to prepare their own taxes,or unaware of the various credits forwhich they may be eligible. Tax prepa-ration through the VITA program is freefor households that make $49,000 orless per year.

This program is also a valuableopportunity for the volunteers accordingto Professor Bird-Pollan. While the stu-dents know a lot of tax law, for many,this experience will mark the firstchance they will get to apply the skillsthey’ve learned in their courses.

The students receive no course creditor payment for volunteering, and have

to pass three levels of certification tests,including a foreign student certificationto prepare them for the many interna-tional students that they will assist.Former VITA volunteers will be on siteto supervise and answer any questionsthat may arise.

For more information, or to schedulean appointment, visit www.law.uky.edu.

Reforming the Kentucky Bar Exam forthe Benefit of Legal Education and thePractice of Law

Note: The following memorandum hasbeen sent to the Justices of the SupremeCourt of Kentucky, the Kentucky Boardof Bar Examiners, the Kentucky Officeof Bar Admissions, and the deans of theUniversity of Kentucky College of Lawand Northern Kentucky University’sChase School of Law. At a meetinghosted by the Supreme Court on Jan.14, 2011, these parties discussed the fol-lowing proposal by the University ofLouisville’s law faculty.

Kentucky Supreme Court Rule2.080(1) prescribes the subjects that

may be tested on the Kentucky bar exam.It has been the subject of discussionamong the Justices of the Supreme Court,the Board of Bar Examiners, the Officeof Bar Admissions, Kentucky’s three lawschools, and individual members of ourbar. The faculty of the University ofLouisville Louis D. Brandeis School ofLaw has adopted a resolution advocatingthe amendment of SCR 2.080(1) in aneffort to reduce the number of subjectstested on the bar exam.

Supreme Court Rule 2.080(1) has aprofound and not altogether positiveimpact on legal education. In practice asignificant number of law studentsdesign their curriculum primarily byrelying on the content of the bar exam.The University of Louisville’s law fac-ulty believes that an amendment ofSCR 2.080(1) would improve legaleducation and the practice of law in the

Commonwealth of Kentucky. By reduc-ing the scope of subjects tested on theKentucky bar exam, this proposedamendment would enable our state’slaw schools to structure their programsof instruction and to advise their stu-dents in ways that are more responsiveto their needs and to those of theirfuture clients, their future employers,and the legal profession as a whole.

The complexity of contemporarylegal practice has rendered untenable thetraditional presumption that all lawyersneed to demonstrate competence acrossthe full spectrum of legal subjects. Manylawyers today practice in specialized set-tings. Lawyers specializing in areas suchas labor and employment law, immigra-tion law, international law, intellectualproperty, and environmental law realisti-cally need to have their initial exposureto their chosen fields of expertise duringlaw school, not after graduation.Established types of practice, such as taxor transactional work, have evolved soas to demand deep course sequences thatspan the entirety of the second and thirdyears of legal education. The traditionalbar exam has failed to anticipate entiretypes of practice, such as alternative dis-pute resolution and governmentalrelations. Experienced lawyers in all set-tings are calling upon law schools toprepare their graduates throughenhanced teaching of concrete legalresearch, writing and speaking skills,client relations, and law practice man-agement. Legal education nowemphasizes, as never before, not onlyspecialized courses but also skills-basedtraining, experiential learning, and live-client clinics. These types of instructionbenefit all law school graduates, most ofall those who begin their careers work-ing for themselves or for small firms. In today’s legal environment, subject-matter specialization coupled with

University ofLouisvilleSchool of Law

University ofKentuckyCollege of Law

■ In MemoriamMary June Pound Burns LouisvilleLouis Cohen LouisvilleLarry Wayne Gilliam LondonChallen P. McCoy BardstownRobert Pride Moore MadisonvilleRaymond Overstreet LibertyLarry L. Saunders Louisville

KENTUCKY BAR NEWSpractical legal skills has far greaterimpact than exposure to an arbitrary listof discrete subject areas.

In deciding which individual subjectsto propose for removal from SCR2.080(1), the law faculty of theUniversity of Louisville consultednational trends among bar examiners forappropriate guidance. The independent,collective judgment of bar examinersnationwide suggests that less frequentlytested subjects are the most appropriatecandidates for removal from Kentucky’sbar exam.

In its current form, SCR 2.080(1)reads in relevant part:

SCR 2.080: Bar examinations(1) The Board of Bar Examinersshall examine such applicants as arecertified to it as provided in Rule2.040. The examination shall covera period of two days and may coverthe following subjects:(a) Administrative Law andAdministrative Procedure(b) Conflict of Laws(c) Contracts(d) Constitutional Law(e) Business Entities (corporations,partnerships and/or others)(f) Criminal Law and Procedure(g) Civil Procedure(h) Domestic Relations(i) Property (real and/or personal)(j) Federal Taxation(k) Torts(l) Uniform Commercial Code(sales, secured transactions and/ornegotiable instruments)(m) Estates (wills and/or trusts)(n) Evidence(o) Such other subjects as the Board

may select from among questionsproposed by the NationalConference of Bar Examiners.

Of the subjects identified in SCR2.080(1), all but three are tested by atleast 38 jurisdictions among the 50 statesand the District of Columbia. (Source:National Conference of Bar Examiners,March 31, 2007, survey; see alsoBarBri Digest 2011: Bar ExamInformation.) Three subjects listed inSCR 2.080(1) are fairly described as sub-jects that are infrequently encountered onthe bar examinations nationwide:

Administrative law is tested in 15jurisdictions: Colorado, Connecticut,Illinois, Indiana, Kentucky, Minnesota,Mississippi, Missouri, New Mexico,Oklahoma, Oregon, Utah, Vermont,Washington, Wyoming.

Conflicts of law is tested in 31jurisdictions: Alabama, Arkansas,Connecticut, District of Columbia,Hawaii, Idaho, Illinois, Iowa, Kansas,Kentucky, Louisiana, Maine, Michigan,Mississippi, Missouri, Montana,Nebraska, Nevada, New Hampshire,New Jersey, New Mexico, New York,North Dakota, Oklahoma, Oregon,Pennsylvania, Rhode Island, SouthDakota, Tennessee, Utah, Virginia, WestVirginia.

Taxation is tested in 15 jurisdic-tions: Illinois, Indiana, Kentucky,Maine, Minnesota, Mississippi,Montana, New Mexico, North Carolina,Oregon, Pennsylvania, Texas, Vermont,Virginia, Wisconsin. Oklahoma testsestate and gift tax; Utah notifies its test-takers that it may examine the taxaspects of estate planning. Among juris-dictions testing taxation, two (Montana,

Texas) explicitly identify both incometax and estate and gift tax as subjects tobe tested. Therefore, by the broadestpossible definition of “taxation,” 17jurisdictions include tax-related subjectson their bar exams.

Because relatively few jurisdictionstest administrative law, conflicts of law,and taxation, we propose the elimina-tion of these subjects from SCR2.080(1). The following proposal wouldremove administrative law and adminis-trative procedure, conflict of laws, andfederal taxation from the scope of SCR2.080(1). In addition, by striking thefinal subsection of SCR 2.080(1), thisproposal would eliminate any potentialinconsistencies arising from reliance onquestions (1) that are proposed by theNational Conference of Bar Examinersand (2) that cover topics not listed in anamended version of SCR 2.080(1).

Our proposal consists of the follow-ing language:

SCR 2.080(1) is amended:

— by striking subsections (a), (b),(j), and (o)— by reordering the remaining sub-sections (c) through (n) so that theyrun sequentially from (a) through (k).

As amended, SCR 2.080(1) wouldread in relevant part:

SCR 2.080: Bar examinations

(1) The Board of Bar Examinersshall examine such applicants as arecertified to it as provided in Rule2.040. The examination shall covera period of two days and may coverthe following subjects:(a) Contracts(b) Constitutional Law(c) Business Entities (corporations,partnerships and/or others)(d) Criminal Law and Procedure(e) Civil Procedure(f) Domestic Relations(g) Property (real and/or personal)(h) Torts(i) Uniform Commercial Code(sales, secured transactions and/ornegotiable instruments)(j) Estates (wills and/or trusts)(k) Evidence.

Alexander Hamilton Historical Society to Present SymposiumThe Alexander Hamilton Historical Society will present the symposium,“Federalism, the Power of the States and Adherence to the Constitution,” from10:30 a.m.-12:30 p.m. on April 16 at the Chao Auditorium at the EkstromLibrary, University of Louisville. The event, which is free and open to the pub-lic, will feature the following speakers and presentations: Hon. Michael O.McDonald (retired), Kentucky Court of Appeals, “Changing the ConstitutionThrough the ‘Necessary and Proper’ Clause;” Dr. Aaron D. Hoffman, AssociateProfessor of Political Science, Bellarmine University, “Federalism and theCommerce Clause;” Dr. Jasmine Farrier, Associate Professor of Political Science,University of Louisville, “State Politics and the 14th Amendment;” and Dr.Charles Ziegler, University Scholar, Political Science Department, University ofLouisville, “U.S. Federalism and Elected Representation.”



SUMMARY OF MINUTESKBA BOARD OF GOVERNORS

MEETINGNOVEMBER 19, 2010

The Board of Governors met on Friday,Nov. 19, 2010. Officers and BarGovernors in attendance were, PresidentB. Davis; President-Elect M. Keane;Vice President D. Myers; ImmediatePast President C. English, Jr., andYoung Lawyers Section Chair N.Billings. Bar Governors 1st District – J.Freed, S. Jaggers; Bar Governors 2nd

District – R. Sullivan, J. Harris; 3rd

District – R. Hay, G. Wilson; 4th

District – D. Ballantine, D. Farnsley,5th District – A. Britton, F. Fugazzi, Jr.;6th District – D. Kramer, T. Rouse; and7th District – B. Rowe, W. Wilhoit.

In Executive Session, the Board consid-ered three (3) discipline default cases.Malcolm Bryant of Owensboro, SteveLangford of Louisville and Roger Rolfesof Covington, non-lawyer membersserving on the Board pursuant to SCR3.375, participated in the deliberations.

In Regular Session, the Board ofGovernors conducted the followingbusiness:

• Heard a status report from the BoardPolicy Review Subcommittee, 2011-2012 Budget & Finance Committee,Diversity in the ProfessionCommittee, Kentucky LawyerAssistance Program, Rules Committeeand Office of Bar Counsel.

• Approved the Family and MedicalLeave Act Policy to be incorporatedinto the Employee Handbook.

• Chief Bar Counsel Linda Gosnell pro-vided a report on the issue of theongoing compliance with Keller v.State Bar of California.

• Approved the 2011 Holiday Schedulefor the KBA Staff.

• Executive Director John Meyersreported there would be a contestedelection in the 7th Supreme CourtDistrict for Bar Governor betweenSteve Burchett of Ashland and Earl“Mickey” McGuire of Prestonsburg.Ballots will be mailed by December15 to those members in good standingin the 7th Supreme Court District to

be returned to the Clerk of theSupreme Court by Jan. 15, 2011.

• Mr. Meyers reported on ordersreceived from the Supreme Court 1)order appointing Matthew P. Cook ofBowling Green to the CLECommission to fill an unexpired term;2) Order approving Amendments toSection 4, Section 5 and Section 11 ofthe By-Laws of the Kentucky BarAssociation; 3) Order approving theamended and restated By-Laws for theHealth Law Section of the KentuckyBar Association; 4) Order approvingthe amended and restated By-Laws forthe Young Lawyers Section of theKentucky Bar Association; 5) Orderapproving the amendments to the By-Laws of the Kentucky Bar Associationwith the deletion Section 16 – LawStudent Division; 6) Order approvingthe employment of auditors for theKentucky Bar Association and theKentucky Bar Foundation/IOLTAFund; and 7) Order appointing Hon.William J. Wehr for a three-year termon the Kentucky Bar Center Board ofTrustees.

• Director of Accounting/MembershipNicole Key presented the financial andinvestment report.

• Young Lawyers Section Chair NathanBillings reported that the section isdoing extremely well and membershipnumbers will exceed last year. Thesection will be releasing an E-Newsletter scheduled to come out inDecember. Mr. Billings reported thatthe Lawyers as Leaders project isgoing well and that a second sessionwill be held in early 2011 in partner-ship with KYLAP.

• President Davis reported that theOrder from Chief Justice Minton cre-ating the new Access to JusticeCommission provides that thePresident of the KBA has the authorityto appoint a member from the Boardof Governors. President Davisreported that he has asked President-Elect Margaret E. Keane of Louisvilleto serve in this capacity.

• Approved the appointment of BarGovernor Anita Britton of Lexingtonto serve on the Kentucky ChildSupport Guidelines ReviewCommission.

• Accepted the Fiscal Year June 30,

2010 Audit Report prepared and pre-sented by Rudler & Associates, Inc.

• Approved continuing the policy ofproviding comp registration for activemembers of the judiciary to attend theKBA’s 2011 Annual Convention.

• Approved the reappointment of BarGovernors Anita Britton of Lexingtonand Jonathan Freed of Paducah to theAudit Committee as well as the reap-pointment of Audit Committee ChairJames Dressman of Crestview Hillseach to a second three-year termexpiring on Dec. 31, 2013.

• Approved the reappointment ofGeorge E. Long II of Benton to theBar Center Board of Trustees foranother three year term ending onDec. 31, 2013.

• Approved the appointment of MarkWhitlow and Kelly Shoening to theJoint Local Federal Rules Commissionfor the Eastern District of Kentuckyfor a four year term ending on Dec.31, 2014.

• Approved the reappointment of ArnoldTaylor of Covington to the JudicialEthics Committee to a second fouryear term ending on Nov. 30, 2014.

• Heard a presentation from DelO’Roark, Jr.; President of the KentuckyParalegal Association Vicki Howard;Past President of the LouisvilleAssociation of Paralegals Dana Martin;and Professor/Attorney Dick Williams,Director of Paralegal Studies atSullivan University, requesting theBoard to re-establish the KBAParalegal Committee. Following dis-cussion, the Board approvedestablishment of a Paralegal Committeewith the committee’s first task to reportback to the Board on its perceived roleand proposed guidelines.

To KBA MembersDo you have a matter to discuss

with the KBA’s Board of Governors?Board meetings are scheduled on

May 20-21, 2011June 14, 2011

To schedule a time on the Board’s agendaat one of these meetings, please contact

John Meyers or Melissa Blackwellat (502) 564-3795.

KENTUCKY BAR NEWS


KENTUCKY BAR NEWS

LAW DAY 2011 PLANNING GUIDES COMING SOONPresidents of local bar associations across the

Commonwealth should be on the lookout this month fortheir Law Day 2011 Celebration planning guides. Thisyear’s theme — The Legacy of John Adams from Boston toGuantanamo — provides the legal community with anopportunity to assess and celebrate the legacy of JohnAdams, explore the historical and contemporary role oflawyers in defending the rights of the accused, and renewour understanding of and appreciation for the fundamentalprinciple of the rule of law.

Law Day 2011 falls on Sunday, May 1. For more infor-mation on Law Day, visit www.lawday.org or contactShannon Roberts in the KBA Communications Departmentat (502) 564-3795, ext. 224. “Your Honor, I’ve heard of spin, but I didn’t realize counsel

would be placing us in a centrifuge today.”

Legally Insane by Jim Herrick

Mark your calendar • June 15-17, 2011 • KBA Annual Convention 2011 • Lexington

WHO, WHAT, WHEN & WHERE


ON THE MOVEStoll Keenon Ogden PLLC is pleasedto announce that attorneys TravisCrump and Emily Pagorski are nowmembers of the firm. Crump andPagorski work in the firm’s Louisvilleoffice. Crump practices in the area ofbusiness litigation with particularemphasis on tort, environmental andcontractual disputes. He is a graduate ofTransylvania University and earned hislaw degree in 2003 from VanderbiltUniversity Law School. Pagorski prac-tices in the area of business litigationand debtor-creditor relations. She is agraduate of the University of Georgiaand earned her law degree in 2004 fromVanderbilt University Law School.

Cory D. Thompson is pleased toannounce the formation of theThompson Law Office. The firm’soffice is located at 3805 Edwards Rd,Suite 550, Cincinnati, OH, 45208. Thefocus of the firm is on general civil liti-gation, personal injury, insurance cover-

age, and criminal defense. Thompsonearned a B.A. with Honors in PoliticalScience and his J.D. from the Universityof Cincinnati in 2004. He is licensed inKentucky and Ohio. Mr. Thompson canbe reached at 513-236-7338 [email protected]. More informa-tion is available at www.thomp-law.com.

Greenebaum Doll & McDonaldPLLC is pleased to announce thatChristopher W. D. Jones and PatrickJ. Welsh have been named co-chairs ofthe firm’s Mergers & Acquisitions(M&A) Team. Greenebaum’s M&ATeam has been in existence for over 50years and handles every aspect of adeal, including real estate, environmen-tal, tax, ERISA, licensure and intellec-tual property issues. Jones practices inthe areas of mergers and acquisitions,healthcare, securities, private equity,financial institutions, and internationaltransactions. Jones is also involvedwith general corporate and contractualissues, U.S. public company reporting

requirements, executive com-pensation and corporate gover-nance. Jones received hisbachelor’s degree fromVanderbilt University and hislaw degree from the Universityof Louisville Louis D. BrandeisSchool of Law. Welsh practicesin the areas of mergers andacquisitions, contractual issues,real estate and other businessrelated topics. He representsseveral manufacturing compa-nies and distributors, advisingthem on issues related to prod-uct distribution. He routinelyadvises clients on the formationand organization of businessentities. Additionally, a consid-erable portion of Welsh’s prac-tice involves franchise lawmatters. Welsh received hisbachelor’s degree fromBellarmine College and his lawdegree from University ofLouisville Louis D. BrandeisSchool of Law.

Vanessa L. Armstrong has beenappointed Clerk of Court for the

United States DistrictCourt for the Western District ofKentucky. She succeeds Jeffrey A.Apperson, who served as Clerk ofCourt for 16 years. Armstrong formerlyserved as the chief deputy clerk for theWestern District of Kentucky. There shehas also served as a pro se staff attor-ney and clerked for the HonorableThomas B. Russell and the HonorableJohn G. Heyburn II. For theCommonwealth of Kentucky, she heldthe positions of legal counsel to theGovernor’s Office of Child Abuse andDomestic Violence Services and assis-tant attorney general. Following lawschool, Armstrong worked as a lawguardian for the Juvenile RightsDivision of The Legal Aid Society inNew York City before moving toKentucky in 1994. The AdministrativeOffice of the U.S. Courts recentlyappointed Armstrong to the CourtInterpreters’ Advisory Group, soughther participation on a court manage-ment review team, and named her to acommittee for judicial policy review.She has also served as a circuit repre-sentative to the Federal Court Clerks’Association where she currently chairsits education committee. She is a mem-ber of the Kentucky Bar Association.Armstrong received her B.A. summacum laude from Berea College in 1988and her J.D. from Columbia LawSchool in 1992.

Stoll Keenon Ogden PLLC is pleasedto announce the opening of the firm’sfifth office location – this one inMorganfield, Ky. SKO would also liketo welcome attorney Sidney H. “Buz”Hulette, who is Of Counsel with thefirm and will be managing theMorganfield office. Hulette will prac-tice primarily in the areas of generallitigation, creditor’s rights, real estate,probate, mineral law and tax planning.Craig Dilger from the firm’sLouisville office and Lauren McElroyand John Henderson from the firm’sHenderson office will also be practic-ing from the firm’s new location asneeded. This expansion is part of thefirm’s effort to better serve its clientsby growing its presence in WesternKentucky.

[email protected]

“Rex Hart is my ‘go to’ guy for video for in the courtroom. He is innovative, accessible,

”

“I have known Rex Hartfor many years and rely on his skills, attitude and work ethic. He is a valuable member of mylitigation team.”

Paul J. Dyar has joined the law firm ofTilford Dobbins Alexander, PLLC.Dyar earned his B.A. in History fromBellarmine University in 1988 and hisJ.D. from the University of KentuckyCollege of Law in 1992. Dyar alsoreceived his LL.M., Taxation in 1993from the University of Florida. Hispractice includes taxation, tax exemptorganizations, business law, wills andtrust and estates.

Frost Brown Todd is pleased toannounce the appointment of four newmembers to the firm. Cory J. Skolnickrepresents clients in a wide array of com-plex civil litigation at federal and statelevels as well as before various alterna-tive dispute resolution forums. Several ofhis matters have involved parallel civillitigation, criminal investigations, andadministrative actions. In addition to hismore traditional litigation practice, headvises clients regularly on administrativeand regulatory issues and conducts inter-nal corporate investigations. Geoffrey M.White is in the Real Estate PracticeGroup and is licensed in Kentucky andOhio with an AV® Preeminent™ PeerReview rating by Martindale-Hubbell.White’s practice is focused on represent-ing lenders, loan servicers, owners,investors, developers and managers in theworkout, servicing, financing, purchase,sale, development and management ofcommercial real estate properties. He is amember of the Board of Directors and thePresident of the Young ProfessionalsAssociation of Louisville, a member ofthe Board of Directors of GreaterLouisville Inc. (GLI), the LeadershipLouisville Center, the Louisville EnergyAlliance, and is a founding member ofthe Governing Directors of The CrossingGenerations Society. Jason C. Williamsconcentrates his practice in corporate lawwith an emphasis in franchise law andmergers and acquisitions of public andprivate companies. He has substantialexperience in the organization and repre-sentation of purchasing cooperatives fornational restaurant chains. Williamsserves as the head of the Frost BrownTodd’s franchise and distribution serviceteam and is a member of the recruitingcommittee. Williams remains activelyinvolved in the Louisville community and

serves on the Board of Directors ofFamily and Children First. Williams grad-uated from the University of KentuckyCollege of Law in 2003 and YaleUniversity in 2000 where he majored ineconomics. He is married to JeffersonCounty District Court Judge Erica LeeWilliams. Martin B. Tucker concentrateshis practice primarily in all aspects ofbankruptcy and restructuring law andcreditor’s rights law. His experienceincludes the representation of bankinginstitutions, commercial landlords, busi-ness entities and individuals regardingcomplex workouts, out-of-court restruc-turings, commercial and consumer bank-ruptcy cases and foreclosures, generalbusiness litigation and contract disputes.He represents and has represented numer-ous companies and individuals as debtorsin complex commercial Chapter 11 andChapter 7 bankruptcy cases and complexout-of-court restructurings and workouts.These cases have included the representa-tion of restaurant owners, franchisees,commercial property owners and similarinterests. His practice also includes repre-sentation of clients in commercial trans-actions, business formation and generalcorporate practice.

Daniel A. Hunt hasjoined the law firmZiegler & Schneider,P.S.C., as an associ-ate. Hunt obtained hislaw degree, graduatingsumma cum laudefrom NorthernKentucky UniversitySalmon P. Chase

College of Law, and his bachelor of artsdegree from the University ofLouisville. While at Chase, Hunt servedas an associate editor of the LawReview and completed an externshipwith Judge William O. Bertelsman.Hunt has been admitted to practice inboth Kentucky and Ohio. His practicewill include general corporate matters,insurance defense, litigation, and munic-ipal law.

Stoll Keenon Ogden PLLC is pleasedto announce that attorney Eileen M.O’Brien is the new chair of the firm’sFamily Law practice group. O’Brien has

been with the firm since 1981. She hasbeen actively involved in firm leader-ship throughout her career with thefirm, helping to plan the annual Womenin Business seminar each fall. She isalso actively engaged in the community,serving on the Editorial Board forKentucky Bench & Bar since 2000. Sheis a volunteer counselor for theKentucky Lawyers Assistance Programand is active with the Fayette CountyPro Bono Board. She presently servesas the vice-president of the KentuckyBar Foundation Board. O’Brien alsoserves as the president of the Board ofthe Chrysalis House and the CarnegieCenter for Literacy and Learning.

Dinsmore & Shohl ispleased to announcethat David Treacy, anattorney in the firm’sLexington office, hasbeen appointed a part-ner. David concen-trates his practice oncomplex corporateand commercial liti-

gation in the state and federal trial andappellate courts as well as before stateadministrative agencies. He currently isa member of the firm’s ProfessionalDevelopment Committee and itsMentoring Program. In addition, Davidcurrently serves on the Board ofDirectors for the Central KentuckyYouth Orchestras and the Bell CourtNeighborhood Association, and is anofficer of the Notre Dame Club ofCentral Kentucky. He earned his J.D.from Seton Hall Law School and hisB.A. from the University of NotreDame.

Dinsmore & Shohl ispleased to announcethat John Selent hasbeen named the man-aging partner forDinsmore & Shohl’sLouisville offices.Selent will overseenearly 60 attorneysand the integration of

the firm’s two local offices followingthe firm’s merger with Woodward,Hobson & Fulton in 2009. He assumes



Daniel A. Hunt

David Treacy

John Selent

the position from JonFleischaker, whoserved as the manag-ing partner for thefirm’s Louisvilleoffice since 1997.Selent is a member ofthe firm’s Board ofDirectors and focuseshis practice primarily

on administrative law and commerciallitigation, with a special emphasis ontelecommunications and public utilitylaw. Selent earned his J.D. from theUniversity of Notre Dame Law Schooland his B.A. from Bellarmine College.

Stites & Harbison, PLLC, announcedtoday that two attorneys have beenelected to membership in the law firm.The new members are: Jamie L. Coxand Mandy Wilson Decker from theLouisville office. Two Associates werealso promoted to counsel: Demetrius O.Holloway and Jamie K. Neal, both

from the Louisvilleoffice. Cox is a mem-ber of the firm’s RealEstate & BankingService Group. She isalso the co-chair of thefirm’s Sustainabilityand EmergingTechnologies PracticeGroup. She concen-trates on commercial

real estate development and leasing,commercial lending and corporate-related real estate issues. Cox is a LEEDAccredited Professional. Decker is a lifesciences patent attorney and a member

of the firm’sIntellectual Property& Technology ServiceGroup. Her practicefocuses on patent-related aspects ofintellectual property,including counselingclients on the cre-ation, management,

enforcement, and practice of intellec-tual property rights. Contributing to her

practice is a scientificbackground in chem-istry and experiencewith academic andcommercial researchin the areas of bio-chemistry, bio-technology andpharmaceutical sci-ences. Holloway is amember of the

Employment Law Service Group andhas both first and second chair trialexperience. He represents employers inthe defense of a variety of state and fed-eral civil suits including Title VII,

ADA, ADEA, FMLA,FLSA and common-law tort claimsrelated to employ-ment. He also hasextensive experiencein litigating non-com-petition and otherrestrictive covenantcases in both federaland state court. He

also represents clients in the defenseof civil suits involving personal injury,

product liability, breach of contractand common law tort claims. Neal is amember of the firm’s Torts &Insurance Practice Service Group andthe Appellate Advocacy Team. Shefocuses on appellate practice and ondefending product liability and profes-sional malpractice claims. She hashandled litigation on a variety of busi-ness liability issues, including intellec-tual property claims, premises liabilityactions and contract disputes.

Seiller Waterman ispleased to announcethat Auric D. Steelehas become an asso-ciate with the firm.Steele received hisJ.D. from theUniversity ofLouisville Louis D.Brandeis School of

Law and is licensed to practice law inGeorgia, Kentucky and California. Hispractice includes litigation, intellectualproperty and entertainment law.

Ben Carter hasopened a law office inLouisville. BenCarter Law(www.bencarterlaw.com)focuses primarily ondefending homeown-ers facing foreclosure,consumer law, and

debtors’ rights litigation. Prior to open-ing Ben Carter Law, PLLC, Ben servedas a housing attorney at Legal AidSociety in Louisville, a public defenderin the island-nation of Palau, and a lawclerk for the Honorable ThomasWingate of the Franklin Circuit Court.He is a 2001 graduate of DavidsonCollege and a 2006 graduate of theUniversity of Kentucky College of Law.Contact him at 502-303-4062 [email protected].



Jon Fleischaker

Jamie L. Cox

Mandy W. Decker

Auric D. Steele

Ben CarterJamie K. Neal

Demetrius O.Holloway

Anita M. Britton, Crystal L. Osborne, and Amy C. Johnson have announcedthe opening of their new Lexington law firm, Britton Osborne Johnson PLLC.They will concentrate their practice in the areas of family law, employment law,securities arbitration and general litigation.

Anita M. Britton Crystal L. Osborne Amy C. JohnsonCLICK • www.kybar.org

Yunker & Park PLC,of Lexington, ispleased to announcethat Oran S. McFarlan, III, hasbecome a member ofthe firm. McFarlanreceived his J.D. fromWake Forest, andgraduated summa cumlaude from the

University of Kentucky with a B.A. inHistory. His areas of practice includecivil litigation, consumer protection andentrepreneurial law.

Bubalo Rotman PLCannounced the elec-tion of ChristopherW. Goode as a part-ner. He will split histime between theLouisville andLexington officeswhere he practices inthe areas of personalinjury and products

liability litigation. Goode currentlyserves as chair of the Lexington-FayetteUrban County Government EthicsCommission. He will begin his term aspresident of the Fayette County BarAssociation in May 2011. Goodeearned his undergraduate degree fromNorthern Illinois University and hisJ.D. from DePaul University. He is amember of the Kentucky, Louisvilleand Fayette County Bar Associations,American Association for Justice(AAJ), and the Kentucky JusticeAssociation. Goode is also a member ofThe Million Dollar Advocates Forum.Goode is a founding fellow of theFayette County Bar Foundation and apast President of the Young LawyersSection of the Fayette County BarAssociation. In 2005, Goode receivedthe Fayette County Outstanding YoungLawyer award.

Dinsmore & Shohl is pleased toannounce that Lee Rosenthal, an attor-ney in the firm’s Lexington office, hasbeen appointed a partner. Rosenthaljoined the firm in 2009 through thefirm’s merger with Woodward, Hobson& Fulton LLP, which Lee practiced with

since 2002. His prac-tice involves litigationin the areas of productliability, transportationlaw, commercial liti-gation, insurance cov-erage and bad faith,and general liability.He has published mul-tiple articles, in sev-

eral publications, on a wide variety ofevidentiary, liability, and damagesissues. Rosenthal earned his J.D. fromthe University of Kentucky College ofLaw and his B.A. from the Universityof Richmond.

Gwin Steinmetz &Baird PLLC ispleased to announcethat Marcia L.Pearson and MichaelF. Sutton havebecome members inthe firm. Both Pearsonand Sutton have beenwith GSB since itsinception in 2007.Pearson is a 2003graduate of theUniversity of NorthCarolina School ofLaw. Her concentra-tion is in the area ofnursing home litiga-tion as well as

employment law. Sutton is a 2004 grad-uate of Indiana University School ofLaw. He concentrates his practice innursing home litigation, healthcare lawand intellectual property law.

Escum L. “Trey” Moore, III andJennifer Howard Moore are pleased toannounce the opening of their firm,Moore & Moore, PLLC. Trey’s prac-tice focuses on civil litigation, espe-cially personal injury and medicalmalpractice cases for plaintiffs.Jennifer’s primary areas of practice areorganization and representation of smallbusinesses and family law. Prior toestablishing the firm, Trey was a found-ing partner of Savage, Elliott, Houlihan,Moore, Mullins & Skidmore, LLP, andMoore, Mullins & Erdmann, LLP. Hehas extensive experience litigating

plaintiff’s personalinjury and medicalmalpractice cases.Trey received his B.A.from Centre Collegein 1999 and earnedhis J.D. from theUniversity ofKentucky College ofLaw in 2002. He is amember of the

Lawyers Mutual Insurance Company ofKentucky Board of Directors and servesas editor-in-chief of the KentuckyJustice Association Advocate magazine. Jennifer previously served as a judiciallaw clerk to the Honorable Karl S.Forester of the U.S. District Court forthe Eastern District of Kentucky and tothe Honorable Jennifer B. Coffman ofthe U.S. District Court for the Easternand Western Districts of Kentucky. Shealso practiced with Wyatt, Tarrant &Combs, LLP in the firm’s corporate andequine groups where her practiceemphasized entity formation, loan

transactions and gen-eral contract law.Jennifer earned a B.A.from Centre Collegein 2000 and graduatedwith honors from theUniversity ofKentucky College ofLaw in 2003. Jenniferserved as chair of theKBA Young Lawyers

Section from 2009-2010 (includingserving on the KBA Board ofGovernors) and has been a longtimemember of its Executive Committee.She currently serves as an adjunctinstructor of legal writing at theUniversity of Kentucky College of Law.Moore & Moore, PLLC, is located atRichmond Square, Suite 22B, 141Prosperous Place in Lexington. Treyand Jennifer can be reached by email([email protected] [email protected]) or by phone859.368.8900.

Burr & Forman LLP announce thatthe Self-Insurance Institute of America,Inc. (SIIA) has named Nashville-basedCounsel Julie McPeak special counselfor the organization with specific


Oran S.McFarlan, III

Lee Rosenthal Escum L. “Trey”Moore, III

Jennifer H. Moore

Marcia L. Pearson

Michael F. Sutton

Christopher W.Goode


responsibilities to represent SIIA onregulatory matters considered by theNational Association of InsuranceCommissioners (NAIC). With her newrole, McPeak joins several of her firmcolleagues in national leadership rolesin the insurance industry. McPeak hasover 12 years of legal and administra-tive experience in state government andmost recently served as the executivedirector of the Kentucky Office ofInsurance (KOI). Prior to her appoint-ment as executive director, she spentnine years as an attorney for KOI, thelast five as general counsel. McPeakalso served as general counsel to theKentucky Personnel Cabinet. McPeak isa member of the Tennessee, Kentucky,Nashville, and Franklin County BarAssociations. She is an active memberof the American Bar Association, Tortand Insurance Practice section, whereshe serves as Vice-Chair of theInsurance Regulation Committee and amember of the Federal Involvement inInsurance Regulatory ModernizationTask Force. McPeak was also a memberof the National Association ofInsurance Commissioners, havingserved on its Executive Committee,serving as Southeastern ZoneSecretary/Treasurer and Chair of theLife Insurance and AnnuitiesCommittee. She is a past Board mem-ber of the National Insurance ProducerRegistry. McPeak received her J.D.from the University of Louisville LouisD. Brandeis School of Law in 1994,and her BBA in 1990 from theUniversity of Kentucky.

IN THE NEWSWyatt, Tarrant & Combs, LLP hasbeen recognized as one of the “BestPlaces to Work in Kentucky” in thelarge companies’category for 2011. Thismarks the fifth consecutive year Wyatthas earned this honor. Sponsored by theKentucky Society for Human ResourceManagement and the KentuckyChamber of Commerce, this award isbased on a two-part assessment.

Thomas E. Rutledge, a member ofStoll Keenon Ogden PLLC, has co-

authored with Allan W. Vestal, deanand professor of Law at DrakeUniversity School of Law, a book enti-tled “Rutledge and Vestal on KentuckyPartnerships and Limited Partnerships.”This book was published by theUniversity of Kentucky College of LawOffice of Continuing Legal Education.

Thomas L. Rouse, an attorney in solepractice in Erlanger, was elected to asecond consecutive four-year term asmayor of Erlanger, a city of more than17,000 residents in Kenton Countyacross the Ohio River from Cincinnati.He was also selected as vice-chair ofthe Kenton County Mayors’ group, anorganization of mayors and govern-ment officials that meets monthly toconsider and discuss issues affectingNorthern Kentucky local government.Rouse was also elected to the positionof vice president of the Kentucky BarAssociation. His term begins on July 1,2011, at the expiration of his sixth yearas a member of the KBA Board ofGovernors. He may be contacted [email protected] [email protected].

Greenebaum Doll & McDonald PLLCis pleased to announce that James W.Herr has been selected to serve on theBoard of Directors for the Legal AidSociety that serves Jefferson County,Ky., and the 14 surrounding counties.Herr is a member of the firm’sLitigation and Dispute ResolutionGroup. His practice includes commer-cial litigation, class action defense andappeals. Herr received his bachelor’sdegree from the University of Kentuckyand his law degree from the University

of Louisville Louis D.Brandeis School ofLaw.

Leadership Louisvillehas announced thatStites & Harbisonattorney GregEhrhard is one of 44community leadersselected for member-

ship in the 2011 Bingham Fellows class.The topic for Bingham Fellows this yearis “Shaping Louisville for the 21st

Century.” Their task is to create a long-range infrastructure plan to meetLouisville’s economic and environmen-tal needs. Greg Ehrhard is a member ofthe firm practicing in the Real Estate &Banking Service Group. He advisesclients in many areas of commercial realestate law, including zoning/land use,leasing, lending and condominiumdevelopment.

For the seventh year in a row, Stites &Harbison was named one of the “BestPlaces to Work” in Kentucky. The offi-cial rankings will be announced at anawards dinner on April 20, 2011, at theLexington Convention Center in down-town Lexington. “Best Places to Workin Kentucky” is hosted by the KentuckySociety for Human ResourceManagement in conjunction with TheKentucky Chamber of Commerce. Also,the Louisville Bar Association hasawarded Stites & Harbison the Paul G.Tobin Pro Bono Service Award. Theaward, normally given to an individual,was presented to the firm for providingpro bono legal services to victims ofdomestic violence at court hearings thatdecide whether temporary emergencyprotective orders should be turned intopermanent protective orders. The pro-gram was originally conducted in con-junction with The Center for Womenand Families and is now coordinatedthrough the Legal Aid Society as partof the Domestic Violence AdvocacyProgram and has been expanded nation-wide to other communities.

Bank InvestmentConsultant magazinehas named CentralBank’s Don Graeterto its annual rankingof “Top 50” consult-ants with a ranking of#6 in the nation.Graeter partners withhis sons, Drew and

Spencer Graeter, at the bank’sWaterfront Plaza location. Graeter, aformer tax attorney, cited the team’sextensive experience and an early com-mitment to providing comprehensivefinancial advice as central to its suc-cess.



Greg Ehrhard

Don Graeter

Bob Hoffer, partner atDressman BenzingerLaVelle, was recentlyawarded theOutstandingCommunity ServiceBonitatem Award fromthe Covington LatinSchool. Hoffer is a1972 alumnus of the

school. Embodying the school mottoBonitatem et Disciplinam et ScientiamDoce Me (teach me goodness, disciplineand wisdom), Hoffer was presented theaward for his work in the community,including the Diocesan CatholicChildren’s Home (DCCH). Hoffer wasalso named president-elect for theKentucky Defense Counsel (KDC). TheKentucky Defense Counsel is focused onincreasing the quality of legal services itsmembers render to their clients andimproving the administration of justice inthe courts. Hoffer has been a member ofthe KDC since 2004. Hoffer headsDBL’s employment law division whichrepresents employers of all sizes includ-ing some of the largest throughout theKentucky and Greater Cincinnati area.

Recently, Joshua D.Farley appearedbefore the SupremeCourt of the UnitedStates, arguing onbehalf of theCommonwealth ofKentucky in Kentuckyv. King. Appearingbefore the Court at

age 29 makes Farley one of theyoungest individuals to ever appearbefore the Supreme Court.

James A. DressmanIII, partner atDressman BenzingerLaVelle, was recentlyreappointed chairmanto the Kentucky BarAssociation’s (KBA)Audit Committee.Dressman was reap-pointed to serve on thecommittee through

2013. Dressman and this committee willbe responsible for appointing independ-

ent auditors and working with them andinternal staff to ensure sound accountingpractices and financial reporting for theKBA. Dressman heads the commerciallaw and banking practice at DBL. Hispractice includes banking law, commer-cial transactions, tax law, probate, estateplanning and real estate.

Middleton Reutlingerattorneys Gregory E.Mayes and MichaelF. Tigue were recog-nized by the KentuckyAlliance AgainstRacist & PoliticalRepression for negoti-ating a settlementwith Metro Louisvillegovernment on behalfof the Coalition forthe Homeless andWayside ChristianMission, whichresulted in new zon-ing and licensing ordi-nances for homelessshelters.

Wyatt, Tarrant &Combs, LLP,announce that theLexington-FayetteUrban County AirportBoard appointedRichard M.Hopgood, partner atthe law firm of WyattTarrant & Combs,LLP, to serve as chair.

He has served on the Airport Boardsince 2008. Hopgood is a member ofthe firm’s Real Estate & ConstructionService Team. He concentrates hispractice in representing retailers, devel-opers, landlords and tenants in commer-cial real estate with an emphasis onretail and office developments. He alsohas extensive experience in oil and gasacquisition, financing and development.

Dinsmore & Shohl is pleased toannounce that Kenyon Meyer, a part-ner in Dinsmore & Shohl’s Louisvilleoffice, was recently elected to serve onthe firm’s Board of Directors.Dinsmore & Shohl’s Board is com-

prised of 14 partnersfrom across the firm.Meyer is a partner inthe firm’s LitigationDepartment and rep-resents businesses inall types of litigation.His extensive litiga-tion experienceincludes commercial

disputes in state and federal courts,wrongful discharge litigation, and tradesecrets and restrictive covenant issueson behalf of employees and employers.He also represents employers andemployees in white collar criminalmatters, both in the investigation stageand in litigation. Meyer earned his J.D.from the University of LouisvilleLouis D. Brandeis School of Law andhis B.A. from the University of NotreDame.

Michael A. Galassoof Robbins, Kelly,Patterson & Tucker,has been certified as amember of TheMillion DollarAdvocates Forum.The Million DollarAdvocates Forum isrecognized as one of

the most prestigious groups of triallawyers in the United States.Membership is limited to attorneys whohave won million and multi-milliondollar verdicts, awards and settlements.The organization was founded in 1993and there are approximately 4000members located throughout the coun-try. Fewer than 1% of U.S. lawyers aremembers. Members must have acted asprincipal counsel in at least one case inwhich their client has received a ver-dict, award or settlement in the amountof one million dollars or more. Galassois a 2000 graduate of the Salmon P.Chase College of Law at NorthernKentucky University. He has beenassociated with Robbins, Kelly,Patterson & Tucker since 1999 andbecame a shareholder in 2006. He prac-tices in the area of civil litigation witha focus on commercial, consumer,bankruptcy, personal injury, employ-ment law, and creditor’s rights.



Bob Hoffer

Michael F. Tigue

Richard M.HopgoodJoshua D. Farley

James A.Dressman III

Gregory E. Mayes

Kenyon Meyer

Michael A.Galasso

Clifford H. Ashburner, chair ofWyatt’s Sustainability Group, has beenre-elected Chairman of the Kentuckychapter of the United States GreenBuilding Council (USGBC). As chair,Ashburner will lead the chapter as iteducates the community on green-build-ing issues and promotes policies thatencourage green building. TheKentucky chapter has over 250 mem-bers, ranging from architects anddesigners to construction companies anddevelopers. Ashburner was the firstattorney to be certified a LEEDAccredited Professional in Kentucky,and also heads the newly-formedConservation and Energy Efficiencycommittee at Greater Louisville, Inc. Heis a published author and frequentspeaker on sustainability issues.Ashburner was also a member of the2010 Bingham Fellows and served as aprimary author of the group’s whitepaper, “Greening Louisville’s BuiltEnvironment.”

KBA Ethics Committee Chair Linda S.Ewald recently received the JudgeBenjamin F. Shobe Civility andProfessionalism Award presented jointlyby the Louisville Bar Association andthe Louis D. Brandeis American Inn ofCourt. The award is presented to anattorney who displays sterling characterand unquestioned integrity and consis-tently adheres to the highest standards ofcivility, honesty and courtesy in his/herpersonal and professional life. ProfessorEwald has been a member of theUniversity of Louisville Brandeis Schoolof Law faculty for over 30 years. She isthe author of several significant articleson professional responsibility, and was aleading member of the KBA Ethics 2000Committee which revised the KentuckyRules of Professional Conduct. She alsospearheaded the reorganization of theKBA “Ethics Hotline,” which providesadvice and guidance to attorneys in needof immediate assistance with ethicalquestions or quandaries. Additionally,Professor Ewald was a founder of the“Partners in Professionalism” programwhich helps third year law studentsmake the transition in law practice withan understanding of the importance ofethics, professionalism and civility.

RELOCATIONEdward J. Brockman,Jr., is pleased toannounce that he hasmoved his principallaw office to 161 EastJoe B. Hall Avenue inShepherdsville. His telephone numberhas changed to (502)955-5501 and his e-mail address is

[email protected] has been in general civil prac-tice for 41 years and will continue hispractice in Jefferson and surroundingcounties.

Linda R. Magruder of Magruder Lawis proud to announce the relocation ofher office to 12211 Old ShelbyvilleRoad, Suite D, Louisville, KY 40243-1591. Her new telephone number is(502) 690-6611 and new fax number is(502) 690-6747. Linda will continue herwork in protecting plaintiffs against sub-rogation and reimbursement claimsmade by Medicare, Medicaid andERISA disability and medical benefitsplans.



Edward J.Brockman, Jr.

Before You Move...Over 16,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important

that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address.

Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he

or she may be communicated, as well as a physical address if your mailing address is a Post

Office address. If you move, you must notify the Executive Director of the KBA within 30

days. All roster changes must be in writing and must include your 5-digit KBA member iden-

tification number. There are several ways to do this for your convenience.

VISIT our website at www.kybar.org to make

ONLINE changes or to print an Address

Change/Update Form

EMAIL the Executive Director via the

Membership Department at [email protected]

FAX the Address Change/Update Form obtained

from our website or other written notification to:

Executive Director/Membership Department

(502) 564-3225

MAIL the Address Change/Update Form obtained

from our website or other written notification to:

Kentucky Bar Association

Executive Director

514 W. Main St.

Frankfort, KY 40601-1812

* Announcements sent to the Bench & Bar’s Who,

What, When & Where column or communication

with other departments other than the Executive

Director do not comply with the rule and do not

constitute a formal roster change with the KBA.

Have an item for

WHO,WHAT,

WHEN &WHERE?

The Bench & Bar welcomes briefannouncements about member place-ments, promotions, relocations andhonors. Notices are printed at nocost and must be submitted in writ-ing to: Managing Editor, KentuckyBench & Bar, 514 West Main Street,Frankfort, KY 40601 or by email [email protected]. Digital photosmust be a minimum of 300 dpi andtwo (2) inches tall from top of headto shoulders. There is a $10 fee perphotograph appearing withannouncements. Paid professionalannouncements are also available.Please make checks payable to theKentucky Bar Association. The dead-line for announcements appearing inthe next edition of Who, What, When& Where is April 1st.

Congratulations!

Arthur Allen Abshire Amelia F. Adams Tyson Kyle Adams William C. Adams IIICharles Joseph Adkins Ferrell Adkins Wael Mohammad Ahmad Barbara Mary Albert Cortney Scott Alexander Jon Alig Timothy Wayne Allen Roula Allouch Gary Webb Anderson Geraldine G. Anderson Terry R. Anderson Julie A. B. Anjo Julie Brown Apperson Rachael Lynn Armstrong Michael C. Arnold Perry Russell Arnold Linda Y. Atkins Thomas Howard Atkins James W B Ausenbaugh Bruce Edward Avery James Lee Avritt Jr.William C Ayer Jr.Tiffany Gash Azzinaro Kenneth Joseph Bader Kathryn R E Baillie Colleen E Balderson Catherine Hill Ball Kimberly Kay Ballard DeAndrea Lynne Baltimore Gary Trent Banet David Bryce Barber Jennifer Yue Barber William Burr Bardenwerper Rodney David Barnes James J. Barrett IIIDina Abby Bartlett Leslie Carl Bates Brent Robert Baughman Christi Gill Baunach Ruth Helen Baxter Robert Daniel Beale Larry Lee Beard Stephen J. Beardsley Bryan Howard Beauman Aaron Michael Beck R Randolph Behnken

Thomas William Beiting Craig Steven Bell Johnny Wade Bell Lindsey Gary Bell Elizabeth A. Bellamy J David Bender Bryan Edward Bennett Ragen Bennett John A. Berger Pierre H. Bergeron Rita L. Bernauer Robert L. Bertram Jennifer Ann Bertrand Clay Massey Bishop Jr.Kevin Don Bishop Robert C Bishop Charles C Bissinger Jr.Bonita Kay Black Bruce Everett Blackburn Mark C. Blackwell Paul Wilson Blair Thomas Blankenship Jeffrey M. Blum Carol Yvonne Boling Richard Boling Barbara D. Bonar John A. Bonar Elizabeth R. E. Bond Brenda Lynn Bonecutter Richard Joseph Bonenfant Harry B. Borders B. Scott Boster Edward Malone Bourne Jr.Michael D. Bowling Donna Lynn Boyce Tony Lee Boyd Charles J. Brannen Jennifer L. Brinkley Donald A. Bromagen Louise Mae Brown Sean Edward Brown Robin L. Browning Elizabeth A. Bruce Ronald K. Bruce Katherine R. Bruenderman Kami Claudette Brumley Jeremy Wayne Bryant Charles E. Bullard Olana Jo Burgess Dennis Clay Burke

Kathryn Burke Kevin Crosby Burke Tonya Sue Burns Richard H. Burr IIIRaymond M. Burse Frederick M. Busroe Jr.David Brett Butcher Gregory Ward Butrum Christopher D. Byers Maurice A. Byrne Jr.John Wolff Byrnes Robert Jeffrey Caldwell John Harlan Callis IIINancy E. Shelby Calloway Catherine G. Calvert Gerry L. Calvert IIAndrew M. Campbell Michael Ray Campbell David Wayne Carby Francis Joseph Cardis Samuel Glenn Carneal Frankie Jeanne Carroll Carolyn Carroway Nicholas A. Carter Mary P. Cartwright Bryan Michael Cassis Bethany Lane Catron Robert L. Caummisar Stephen C. Cawood John Thomas Chafin Debi Faye Chalik Robert Anthony Chandler Ralph Phillip Chaney Jr.Jeanne Kincer Channell Jacqueline Lea Childers Karen Gail Chrisman Edward Anthony Clark Galen L. Clark Joseph G. Clark Jr.Cynthia Rowell Clausen David Joseph Clement Mark Ray Cobb Cynthia Lou Coffee Willis G. Coffey Jon C. Coffman Ross Daniel Cohen Andrew Terrian Coiner Trevor Howard Coleman Edmond Collett Angela Dawn Collette James Albert Comodeca Peggy Gross Comstock Michael P. Conley Allison Inez Connelly Luther C. Conner Jr.Louise Cook Martha Farmer Copeland Jessica Perry Corley Tanya Robin Cornette Natalie Ellen Corrigan Frank Coryell David Lester Cotthoff John Foster Cotthoff Vincent John Cotton Jr.Paul Brian Couch Anthony Gallo Covatta Jr.Darrell Allen Cox Garrison R. Cox Stephanie G. Cox James Robert Craig Stephen Lance Craig James M. Crawford James Timothy Crawford Wynne Louis Creekmore Jr.Charles J. Crosby Robert F. Croskery Amy Denise Cubbage Jennifer H. Culotta Wolodymyr I. Cybriwsky Stephen K. Dallas Charles Edward Daniel

Marilyn S. Daniel Rhoda Tolz Daniels Barton David Darrell Katherine P. Davenport Denise Moore Davidson Deborah L. Davis Myrle Lynn Davis Richard Frank Dawahare Perrin Wells de Jong Jeffery Bryant Dean Karen D. B. Dean John Alexander Decamillis Matthew Beatty DeMarcus Timothy Denison Carl D. Devine Barbara K. Dickens Harold E. Dillman Vincent Dimasi Charley Greene Dixon Jr.Dodd Douglas Dixon Laurel S. Doheny Robert A. Donald IIIThomas Edward Donnellon Charles L. Douglas Jr.Christopher F. Douglas LeeAnna Dowan-Hardy Brian McKee Driver Eric York Drogin Rhonda D. Duerr Richard E. Duerr Jr.Bridget Leigh Dunaway Amy Rebecca Duncliffe Kate Delaney Dunn Ronnie G. Dunnigan Dustin Wallace Dyer R Sidney Easley Jeffrey Lyle Eastham Mark E. Edison Terry Dennis Edwards Darren Lee Embry William David Engel Candy Yarbray Englebert Robert C. English Kenny Bryan Ernstberger Philip Carl Eschels Stephen E. Esselman Angelena M. E. Etherton Robert Charles Ewald Erin C. Farnham Jacques Daniel Farrell Shannon Renee Fauver Joseph H. Feldhaus Dennis Britt Fentress Maria A. Fernandez Bruce Justin Ferriell Sarah E. Fightmaster Marina Finegold Joseph Leslie Fink IIIJohn C. Fischer Jerome S. Fish IIJon L. Fleischaker Lisa Louise Fleming Robert Anthony Florio Whitney C Flota William Owsley Flowers IIJack W. Flynn John D. Ford Richard T. Ford Donna J. Foust Bradley Wayne Fox Michael B. Fox Donald L. Frailie IIShasta Kay Fraley James Michael Francis Danita Joleen Frederick Ellen Gail Friedman Fredric N. Friske Stephen S. Frockt Christopher W. Frost Angela Kortz Funke David Eric Funke

James Burns Galbreath Marcus Daniel Gale Sean Patrick GallagherG. Keith Gambrel Chadwick Neal Gardner Judith Boyers Gee Kimberly S. I. Gevedon Carl Wayne Gibson D. Randall Gibson Jill Lyn Giordano Thomas B. Givhan John Anthony Goebel Paul S. Gold Elisabeth P Goldman Julia H. Gordon Paul Hatton Gosnell Alissa J. Graf-Schad David C. Graves IIIDouglas L. Greenburg Gerald L. Greene William D. Gregory Seleta M. Griffin Maxine Sue Grossinger John Mark Grundy Martin Andrew Haas Jr.Charles F. Hagan Donna R. Hale Jennifer J. Hall Sherry Dawn Hall William M. Hall Jr.Brian Paul Halloran John Richard Hamilton Ronald Lee Hampton Karim Hosam Hanafy Sharon Ruth Handy Bradley T. Hanks John V. Hanley Jennifer B. Hans Dennis Allan Hardin Jonathan C. Hardy Mark Douglas Hardy Glenda Jochum Harrison Jack Bolden Harrison Robert E. Harrison Deborah Lynne Harrod Jeremiah W. Harston Amanda L. Hartley Martha Young Hasselbacher Cirris E. C. B. Hatfield Mary Gina Hayes Douglas Scott Haynes John D. Hays Richard J. Head F. Richard Heath Sheryl Egli Heeter S. Marie Hellard Jeffery Wade Helton John Hughes Henderson IIIKevin G. Henry Marcus Hayes Herbert Sarah Sparks Herron Vincent F. Heuser Jr.Stacey Hardin Hibbard Patrick C. Hickey Robert Gregory Higgins Cynthia Lynn Higgs Monica J. T. Hill Paul J. Hill Ralph E. Hill G. Robert Hines John Edward Hinkel Jr.Charles F. Hoffman Maria Greta Hoffman Ruth Ann Hollan Charles F. Hollis IIIAndrew Lott Holton Sherrill P. Hondorf Dale Lee Horner Jr.Richard Vernon Hornung William A. Hoskins IIIPamela Yvette Hourigan


To the following members who reported 50 or more Pro Bono hours on their 2010-2011 Annual Dues Statement.


Stella Belinda House Douglas C. Howard Jay Bruce Howd Thomas M. Howe Bradley R. Hoyt Carroll Hubbard Jr.Lee Huddleston Lisa D. Hughes Sidney H. Hulette Derek D. Humfleet John Earl Hunt William Jay Hunter Jr.Joseph Thomas Ireland Justin Lee Jablonski Andrea Marie Janovic August Thomas Janszen Elizabeth M. Jenkins Donn Randall Jewell Harold M. Johns Alicia Carol Johnson Graddy W. Johnson Kevin Wayne Johnson Lira Ann Johnson Lon M. Johnson Jr.Robert H. Johnston IIIBrandon C. Jones Saunders Paul Jones IVJudith K Jones-Toleman David Barry Jorjani Edwin F. Kagin Jr.Cathy Kahnle Taylor Kain David M. Kaplan Martin Z. Kasdan Jr.Margaret E Keane Lori Jayne Keen Dennis James Keenan IIIWilliam Leslie Keene Jr.Benjamin Todd Keller John Warren Keller Laurie Goetz Kemp Katherine Kay Kendall James Venus Kerley Thomas R. Kerr Valerie S. Kershaw Joshua Ryan Kidd James Albert Kidney Lanna Martin Kilgore Phillip Lynn Kimbel John W. Kirk Robert M. Kirtley Christopher J. Klein Bruce Lee Kleinschmidt Brian J. Klopfenstein John Mark Kressenberg Rand E. Kruger John F. Lackey Ashley Nicole Laferty David James Lampe Susan Turner Landis Timothy Daniel Lange Edward Charles Lanter Kevin Paul Laumas Theodore Lavit H.Nancy Ann Lawson Stephen Samuel Lazarus Patricia C. Le Meur Pamela S Ledgewood Jason Landow Lee Mary A. Lepper Michelle C. Lerach Marc H. Levy Matthew Asher Levy Bobbi Jo Lewis Floyd Allen Lewis Johnie Delbert Lewis Jr.Phillip Lewis Bruce Wayne Lominac John M. Longmeyer Philip Michael Longmeyer Franklin W. Losey Marc Allen Lovell Jeffrey Todd Loy Deborah Lydon James David Lyon James William Lyon Jr.Michael W. Lyons Thomas C. Lyons Mark Thomas Macdonald Richard C. Macke

Ryland F. Mahathey Don H. Major Brett Edward Mangum Samuel Manly Michelle E. Mapes David Dwight Marshall Stephen L. Marshall Eleanor F. Martin James Richard Martin IIJennifer McVay Martin Evaristo M. M. Martinez Frank Mascagni IIIMarsha Dianne Mason Ronald D. Mather Charles C. Mattingly IIIJoseph Hubert Mattingly IIIRobert Denton Mattingly Sharon A. Mattingly Frederick M. Mayer Thomas A. McAdam IIIAnne W. McAfee Bruce Lane McClure George David McClure Jr.Allen Keith McCormick James Paul McCrocklin Micki Woodward McDaniel Kevin Michael McGuire Katherine E. McKune Brendan Joseph McLeod William F. McMurry Melissa D. McQueen Mark Stephen Medlin David S. Mejia James Albert Metry Gregory Scott Metzger Keith D. Meyer Karen Diane Meyers James C. Milam Adam Clayton Miller Brendon D. Miller Amy Marie Miller-Mitchell Mark Daron Mitchell Kent David Mitchner Theresa Marie Mohan Edward C. Monahan Patrick John Monohan James H. Moore IIIPatrick Joseph Moran Kevan Morgan W Randall Morris Nina Louise Moseley William C. Moses Teri Lynn Mosier William Lowell Mundy Linda Strite Murnane Aaron Michael Murphy Melinda Ann Murphy Terri Renee Mussetter Joseph James Neely Kerry Lee Neff William D. Nesmith Frank Lewis Newbauer Peter Canavan Newberry Samuel Ryan Newcomb Robert Brand Newman Thomas A. Noe IIIDennis Leo Nordhoff IIChristopher S. Nordloh Dennis L. Null Victoria D. Oakley Daniel Brian O'Brien George R. O’Bryan Paul Connor O’Bryan Lynne Marie O’Connor Stephen M. O’Connor Margaret O’Donnell Lisa Jean Oeltgen James Floyd Ogden Steven J. Olshewsky Patrick Edward O’Neill Rebecca Jean O’Neill K. Osi Onyekwuluje Victoria Combs Owen Annie L. Owens Ross Collins Owens IIIStephen Palmer Timothy Alan Parker D. Steven Parks Djenita M. Pasic William Lewis Patrick

Jaime Lynne Patterson John Judson Patterson John E. Pence Robert John Penta Charlie M. Perkins Jason Kelly Petrie Kirk M. Pfefferman Robert David Pinson Michael M. Pitman Stephen Howard Poindexter Andrea Lynn Poniecki Brenda Popplewell Jack Chester Porter Richard C. Porter Jr.Stephen T. Porter Clifford Keith Powell Scott Emerson Powell Nicola Ai Ling Prall John G. Prather Jr.Nicole M. Prebeck Zachary David Prendergast Haley Anne Prevatt E Austin Price Kimberly S. H. Price William E. Quisenberry Jr.Marco Mike Rajkovich Jr.Phillis Hegmon Rambsy Daniel Parker Randolph William C. O. Reaves Ryan James Reed C. Michael Reynolds Elizabeth Dawn Reynolds Frederick W. Rhynhart Robert Edward Rich Charles E. Ricketts Jr.Donald Jerome Ridings Jr.Ronald Lee Rigg Nicholas W. Riggs Virginia Maria Riggs-Horton Billy N. Riley Johanna Doreen Rippey John Todd Rippy James O. Risch Michael D. Risley Stephanie Dawn Ritchie Mary Kelly Rives Theodore M. Robbins Nancy Oliver Roberts Ronald Gerald Robey Cory Scott Robins Phyllis L. Robinson Timmy G. Robinson Jr.Benjamin D. Rogers Earl Rogers IIISuzanne Romano John H. Rompf Jr.Camille D. Rorer John M. Rosenberg Martha Alice Rosenberg Peter Allen Roush Neil Prakash Roy Michael K. Ruberg David Brian Rubinstein Raymond F. Runyon Wendellyn Knox Rush Ronald Joseph Russell Harry J. Rust Jamie Lynne Rust Perry Thomas Ryan Brian Keith Saksefski Timothy Jay Salansky Jeffery Lynn Sallee Jonathan Todd Salomon Arthur R. Samuel Jeffrey M. Sanders Stephen Craig Sanders Antony Lee Saragas Sharon H. Satterly Steven C. Schletker Benjamin Schmidt John Anthony Schmidt John Hilary Schmidt Thomas David Schneid Larisa I. Schneider Jennifer Lynn Scholl W. Fletcher Schrock David M. Schuler Jr.Lee A. Schulz Paul Roman Schurman Ryan A. Schwartz

James Richard Scott Lindsey Scott Tasha Kay Scott Thomas Arthur Scott Jr.Jeffrey B. Segal M. Thurman Senn Mary E. Sergent Stephen K. Sesser Suzanne Lee Shaffar Saeid Shafizadeh Michael Gary Shaikun Valerie Anne Shannon Wavie Clinton Sharp Mary Angela Shaughnessy Crystal M. Shepard Ashlea Lashea Shepherd Mary Margaret Sherman Karen Lee Shinkle Thomas Paten Shreve Katherine N. Siereveld Larry D. Simon Thomas Bruce Simpson Jr.Bruce W. Singleton Diana L. Skaggs Robin Renee Slater Michael R. Slaughter Roxann R. Smalley Mark Anthony Smedal Eurie Hayes Smith IIIH. Bradley Smith Harold R. Smith James David Smith James Stephen Smith Jonathan Logan Smith Linda Andrea Smith Mark Thomas Smith Mitzie V. Smith John E. Spainhour Jr.Lloyd Emory Spear D. Nathaniel Spencer Charles S. Spiegel Robert Joseph Stanz Mark Joseph Stanziano John Warren Stapleton Auric D. Steele Kathy Stein E. Douglas Stephan Andrew Martin Stephens Kenneth S. Stepp Melissa Ann Stevens David Stuart Stevenson John F. Stewart William Kash Stilz Jr.Brent Michael Stinnett Matthew Atwood Stinnett Thomas K. Stone Melanie Lee Straw-Boone David C. W. Stuart Flora Stuart Natalie T. Stuart David Shawn Sullivan Maureen Ann Sullivan Nicholas D. Summe David Brandeis Tachau Anthony B. Tagavi Alex F. Talbott John Lewis Tate Jeffrey Dale Tatterson David Allen Taylor Edwin Evans Taylor Kembra Sexton Taylor Leonard W. Taylor IIILescal Joseph Taylor Michael A. Taylor Roderick A. Tejeda John O. Terry T Rankin Terry Jr.Donald Anthony Thomas Linda Bernice Thomas Patricia Ann Thomas Charles Lee Thomason David T. Thompson Gregory Irvin Thompson Kenneth R. Thompson IISteven O. Thornton Margaret F Timmel Arlette Cooper Tinsley Karen Tosh Todd Kirby Trautwein David Clifton Travis

Michael D. Triplett C. Christopher Trower Philip J. Truax Agnes Sipple Trujillo Emanuel Cohen Turner Johnnie Lloyd Turner Robert Steven Ukeiley Melissa S. Van Wert Susan Jeanne Van Zant Richard Allen Vance John Jay Vandertoll James J. Varellas Jr.Sandra M. Varellas Bradley K. Vaughn Jason C. Vaughn Nicholas C. A. Vaughn Rebecca Cox Venter Justin D. Verst Harold Louis Vick David B. Vickery Stephen Deems Vidmer Paul F. Vissman Charles Curtis Walden Charles Aaron Walker Richard Adolph Walker Catherine I. Wallace Matthew Robb Walter Dana Geneen Walton-Macaulay John Lockwood Warner Jr.William T. Warner Louis Irwin Waterman Alvin D. Wax Harry Patrick Weber Katharine C. Weber Thomas Marion Weddle Jr.Kevin Patrick Weis Robert J. Welch Jr.C. Michael Weldon Charles S. West Gail Webb West Steven L. West Whitney H. Westerfield Jennifer T. Westermeyer Paul Lewellin Whalen Thomas Edward Wheeler IIStanley W. Whetzel Jr.Larry Whitaker John Andrew White Scott White John Bell Whitesell Jerry W. Wicker Mary Jo Wicker Mark Kindred Wickersham Diana Carter Wiedel Christopher D. Wiest Dennis Keith Wilcutt IILeanna Puckett Wilkerson Russell Lynn Wilkey Howard Douglas Willen Thomas Brandt Willenborg Arthur Lee Williams Cordell Hull Williams Jr.John Paul Wilson Melissa Ann Wilson William R. Wilson Meagan Ruth Winters Mark Donald Wintersheimer Mark Alan Wohlander Kay L. Wolf David Duane Wolfe Mark H. Woloshin Dax Ryan Womack Zack N. Womack Bobby G. Wombles John W. Wooldridge Jerry Lee Wright Charles David Yates Frank Yates Jr.Shelli D. D. Yoakum Larry H. York Michael M. York Mary James Young Shane Alan Young Franklin S. Yudkin Bruce A. Yungman Russell Bruce Zaino


MARCH

15 Professionalism, Ethics & Substance Abuse InstructionCincinnati Bar Association

15 Appeals from Arbitration OrdersLouisville Bar Association

16 Foreclosure: Debt ReadjustmentCincinnati Bar Association

16 Kentucky Legislation & Tax Case UpdateLouisville Bar Association

17 Family Court Half Day CLELouisville Bar Association

18 Corporate Law Brown BagLouisville Bar Association

22 Webinar: Deferred Fees and Structured SettlementsKentucky Justice Association

22 Probate & Estate Law Brown BagLouisville Bar Association

24 Advocacy Series/Part One – Pre-Trial PracticeCincinnati Bar Association

24 Social Security Brown BagLouisville Bar Association

25 True Success as an In-House Law Department: Proactive Workplace Harassment Prevention ProgramLouisville Bar Association

29 Kentucky’s Corrections Crisis: Reforming the Commonwealth’s Sentencing LawsState Government Bar Association

29 Webinar: Demonstrative AidsKentucky Justice Association

30 Healthcare Enterprise: A Primer on the Regulations Affecting the Business of HealthcareCincinnati Bar Association

APRIL

12 Video Replay: Professionalism, Ethics & Substance Abuse InstructionCincinnati Bar Association

13 ReleasesKentucky Justice Association

13 Immigration Law for the General PractitionerCincinnati Bar Association

13 Environmental Law Brown BagLouisville Bar Association

14 Advocacy Series/Part Two – Trial PracticeCincinnati Bar Association

15 Subrogation Workshop (Louisville)Kentucky Justice Association

15 Domestic Relations InstituteCincinnati Bar Association

15 Criminal Law Brown BagLouisville Bar Association

19 Real Estate Brown BagLouisville Bar Association

20 Health Law Brown BagLouisville Bar Association

21 Elder LawCincinnati Bar Association

27 Construction LawCincinnati Bar Association

28-29 AAML/LBA 14th Annual Family Law Seminar: Tackling the Tough IssuesLouisville Bar Association

29 Subrogation Workshop (Lexington)Kentucky Justice Association

MAY

4-5 26th Annual National Conference on Equine LawUK CLE

6 Social SecurityCincinnati Bar Association

10 Government & Public Sector Brown BagLouisville Bar Association

11 Probate LawCincinnati Bar Association

11 Taxation Law Half Day CLELouisville Bar Association

12 Volunteer Lawyers for the Poor SeminarCincinnati Bar Association

12 Social Security Half DayLouisville Bar Association

13 Nursing HomesKentucky Justice Association

14-18 Trial CollegeKentucky Justice Association

17 Video Replay: Professionalism, Ethics & Substance Abuse InstructionCincinnati Bar Association

20 Local GovernmentCincinnati Bar Association

20 Auto Seminar (Hebron)Kentucky Justice Association

25 Auto Seminar (Louisville)Kentucky Justice Association

25 Employment Law: Wage/Hour and OvertimeCincinnati Bar Association

26 Basic Real PropertyCincinnati Bar Association

CLEventsThe following is a list of TENTATIVE upcoming CLEprograms. Circumstances may result in programchanges or cancellations. You must contact thelisted program sponsor if you have questionsregarding specific CLE programs and/or registration.

T he Kentucky Bar AssociationContinuing Legal EducationCommission is a hard-working

group of volunteer KBA members con-sisting of seven attorneys, one fromeach appellate district in Kentucky.These members are appointed by theKentucky Supreme Court and serve athree-year term. A member of the com-mission may be reappointed, but maynot serve more than two successivethree-year terms. The purpose of thiscommission is to administer and regu-late all continuing legal educationprograms and activities for the membersof the KBA. This includes ensuring thatthe members of the KBA complete highquality, timely CLE programming eachyear. From developing and implement-

ing rules and policies to ensure highstandards in the accreditation of CLEprogramming, to developing and spon-soring quality programming, toregulating attorney compliance with themandatory minimum CLE require-ments, the CLE Commission is workingtoward the increased competency of thelegal profession in Kentucky.

In carrying out its duties under theKentucky Supreme Court Rules, theCLE Commission wears two distincthats. First, as a program sponsorresponsible for overseeing the develop-ment and performance ofKBA-sponsored CLE programs, thecommission operates as a serviceorganization, finding timely, convenientand interesting programming at little tono additional expense to KBA mem-bers. In addition to planning,commission members often take anactive role in executing programs byparticipating as speakers, moderators,and/or program coordinators. Second,as a regulatory body, the commissionworks tirelessly to educate membersregarding their CLE requirementsunder the Rules and how to satisfythem. For those who fail to satisfythese requirements, the commission isresponsible for certifying their namesto the Kentucky Supreme Court and forproviding the Court with relevant infor-mation in order to help ensureappropriate remedy.

Because of KBA member volun-teers like those serving on the CLEcommission, the continuing legal edu-cation of Kentucky attorneyscontinues to be in good hands . . .their own. If you should have ques-tions or comments about continuinglegal education, the members of thecommission encourage you to contactyour district representative.


THE CLE COMMISSION: WHAT WE DO AND WHY WE DO IT


Ceasar Mark C. Achico Sara Jean Adair Deborah S. Adams John R. Adams John Lindsey Adams Angela Adams Gary William Adkins William L. Aldred, Jr.Dennis Charles Alerding Benjamin R. Allen, IIIPaul Alley Joseph Casey Allison Daniel Michael Alvarez E. Kenly Ames Julie A. B. Anjo Joseph Richard Ansari Joseph V. Aprile, IIGlen S. Bagby Neal Forrest Bailen Ashleigh Noel Bailey Carlos D. Bailey Kathryn R. E. Baillie John Joseph Balenovich Bryan C. Banks Travis Kent Barber Rodney David Barnes Douglas Wayne Barnett David Michael Barron Michael Austin Bass W. Ralph Beck Robert L. Bell, Sr.Tiffany Lynn Bell Elizabeth A. Bellamy J. David Bender Amye L. Bensenhaver Perry Mack Bentley Joel T. Beres Richard W. Bertelson, IIISarah Marie Best Tamela Ann Biggs Clay Massey Bishop, Jr.Erich Eugene Blackburn James Bradley Blakeman Caleb Tyler Bland Barbara D. Bonar Ruth Elizabeth Booher David C. Booth Paul Richard Boughman William Andrew Bowker John C. Bowlin Edward Lee Bowling Melissa Jane Bowman James E. Boyd Gorman Bradley, Jr.John W. Braun Laura B. Brent Anita Mae Britton

Lisa Marie Brookes-Hayse Shannon Brooks-English Carolyn Dawn Brown Brian Scott Brownfield Matthew James Browning Jennifer W. Bryan Sarah Kay Bryant Vicki Lynn Buba Melinda Brooke Buchanan Steven Jared Buck Amy Catherine Burke Kevin Crosby Burke Michael T. Burns E. Andre’ Busald Jennifer L. Bush Victoria D. Buster James Aaron Byrd Jeffrey August Calabrese Robert Jeffrey Caldwell Stephanie Lynn Caldwell John Harlan Callis, IIIJoe B. Campbell Rutheford B. Campbell, Jr.Alton L. Cannon Allison N. Carroll Benjamin W. Carter John Keith Cartwright Lance Casey Diana L. Cassidy Mary Suzanne Cassidy Stephen E. Castlen Marianne S. Chevalier Carole Douglas Christian Robert K. Claycomb Robbie Owen Clements Aimee K. Clymer-Hancock Michael CoblenzJonathan Chase Cochran Daryl Russell Coffey Thomas R. Coffey Tracy Lynn Cole William Lewis Collins Kieran John Comer Allison Inez Connelly Edward Lyn Cooley Mary Anne Copeland Joshua Bryan Crabtree James Robert Craig Joseph N. Crenshaw Boyce Andrew Crocker Justin David Crocker Richard A. Cullison Mary Elizabeth Cutter Teresa Ann DanielJason Franklin Darnall Gene A. Dauer

April Lynn Davenport Brian John Davis Timothy Edward Davis Patricia Ann Day John L. Day, Jr.Matthew Beatty DeMarcus Jeffery Bryant Dean Karey Lenee’ Deardorff Cheri Riedel Decker Larry Colby Deener Laura Day DelCotto Mary Jo Delaney Peter G. Diakov Craig C. DilgerRebecca B. DiloretoErvin Dimeny Shannon Marie Doan Allen McKee Dodd John Carroll Dodson Anna Leisa Dominick Jamesa J. Drake Jacqueline S. Duncan Harold F. Dyche, IIMarci P. Eaton Garry L. Edmondson Glenda Mae Edwards Ashley Ruth Edwards Darren Lee Embry Charles E. English, Jr.Tammy Meade Ensslin John Francis Estill Joshua Tyler Fain Douglass Farnsley Marjorie Ann Farris Elizabeth S. Feamster James Owen Fenwick, IIIErin Kelli Fields Jill Marie Finch Robert Patrick Flaherty Melanie Ann Foote Paul Kevin Ford Matthew W. Forsythe Jack Dwain Fowler Cathy Weller Franck Carl Norman Frazier Tracey A. Frazier Steven Michael Frederick Jonathan Freed Tommy J. Fridy Luke Joseph Frutkin Roy Fugitt Steven Brent Fuller Lori Fuller Catherine S. N. Fuller Ashley Ryan Gaddis Michael Alan Galasso Carol Marie Garrett

Judith Boyers Gee Alan J. George Ann Elizabeth GeorgeheadRichard A. Getty Lee Jay Gilbert Jason Robert Gilbert Bruce J. Gilbert Karen Hoskins Ginn Robert William Goff Brian David Goldwasser Joe M. Goodman Lori Nicole Goodwin Henrietta D. Gores Michael D. Grabhorn Janet Marie Graham William Allen Gray Anthony B. Gray Joan Deaton Grefer Virginia Werle Gregg James Randall Grider, Jr.John Gregory Grohmann William R. Hagan Sharon Kaye Hager Lisa Russell Hall Morgan Carol Hall Martha Turner Hamann Joseph L. Hamilton Seth Allen Hancock James E. Hargrove Aaron Charldon Harper Michael J. Harrison Martha Blair Harrison Jason Apollo Hart Martin Lando Hatfield Foster L. Haunz Richard Wayne Hay Hidekazu Hayakawa Sarah Capps Hayes John Christian Helmuth Christy Lee Hendricks James Michael Herrick David Jack Herzig Vincent F. Heuser, Jr.Ramona Carole Hieneman Myles Lee Holbrook Elaina Lell Holmes Sherrill P. Hondorf Stephen M. Hopta Vicky Chandler Horn Melissa Carol Howard Robbie Joseph Howard Tammy E. Howard John Paul Howard Rachelle N. Howell Bradley R. Hoyt Barbara Ann Hughes Leland Taylor Hulbert, Jr.

Clayton Reed Hume Christopher E. Hutchison David Brandon Ison Lindsey Lee Jaeger Steven Douglas Jaeger Cheryl Edwards James Jamie T. Jameson Brandon Neil JewellA. Thomas Johnson Rickie A. Johnson Anita Parsons Johnson Barbara W. Jones Susan Beverly Jones Jennifer A. Jones Kyle David Kaiman Alexis Kasacavage Charles David Keen Linda Marion Keeton Louis Kelly Barbara Curtin Kenney Joe Harvey Kimmel, IIIShawna Virgin Kincer David Dale King Edward Michael King Lori A. Kinkead Michael Keith Kirk Jeremy Kirkham Mark Joseph Kisor Sarah Hay Knight Walter C. Koczot Jennifer L. Kovalcik Sheilah G. Kurtz Stephen C. Laber Cicely Jaracz Lambert Dean A. Langdon Stephanie D. LangguthHolly Neikirk Lankster Michael Lars Larson James Theodore Lawley Jason Andrew Leasure Jason Landow LeeJames Russell Lesousky, Jr.Richard Owen Lewis Leah Erin Link-Ulrich Matthew Thomas Lockaby Michael A. E. Loesevitz Jane Long Jason Hursel Long Crystal Dawn Love Eric Allen Ludwig David Eric Lycan James Vincent Magee, Jr.Kurt William Maier Cole Adams Maier Amanda G. Main Amanda A. Major John Regis Maloney

Congratulations to the following members who have received the 2010 CLE Award by obtaining a minimum of 62.5 CLE credit hourswithin a three year period, in accordance with SCR 3.680. The CLE Commission applauds these members for their efforts to improvethe legal profession through continuing legal education.


Tommye Collett Mangus Reid Stephens Manley Michael John Marsch Valerie May Marshall James Richard Martin, IISarah Jessica Martin Kevin Jay Martz Ronald Scott Masterson Pamela R. May Teresa D. Maynard Wendell Kevin McBride Kendra Lynne McCardle Frank H. McCartney Alyson Rene McDavitt Julie Marie McDonnell Brandi Lynn McEldowney Jason Scott McGee Michael Scott McIntyre Carrie Insco McIntyre Bernard L. McKay Kevin M. McNally Julie Mix McPeak Douglas L. McSwain Christopher J. Mehling Coty Meibeyer Matthew Dean Meier Christopher A. Melton William Peery Melton Louis F. Mercado Keith D. Meyer C. Terrell Miller Mason L. Miller Daniel H. Miller, IIISucheta Mohanty Mary Kathleen Molloy Donald P. Moloney, IIEdward S. Monohan, IVWilliam Ladd Montague Barry David Moore Jessica Ann Moore E. Patrick Moores John Hunt Morgan Kyle Mason Morris Bryan Darwin Morrow Denise M. Motta Julia T. Mudd

Angela Hatton Mullins Larry Wayne Myers David Wayne Nagle, Jr.Gail Chooljian Nall E. Lorraine Neeley Leslie M. Newman Spencer D. Noe Onita Nella Noffke Daniel Mark Nolan Eileen M. O’Brien Lynne Marie O’Connor Patrick Edward O’Neill James R. Odell, Jr.Mark Allen OgleChristopher B. Oglesby John Kirk Ogrosky Suleiman O. Oko-ogua Tomoyuki Otsuki Mark R. OverstreetStephen Palmer Melissa H.P. Palmer Nicole Hou Wen Pang C. Fred Partin David Patrick John Judson Patterson D. Patton Pelfrey Randall Pennington Brenna Lynn Penrose David Gary Perdue David James Perlow Michael Todd Pfeffer Jeanne M. Picht Gwendolyn R. Pinson Janice Lee Platt Laura C. Plumley John S. Poole John Randall Potter Brian Stephen Powers Jeffrey Ray Prather Finis R. Price, IIICarl Eugene Pruitt, Jr.Justin Henry Ramey James Brian Ratliff Gregory Adam Redden James Terrill Redwine Bradley Aaron Reisenfeld

Bruce ReynoldsJason Cosmo Reynolds Alexandria Ribeyre Leitao Robert Edward Rich James Milby Ridings John Robert RoBards Jimmy Lee Roark Theodore M. Robbins Joe Lucas Roberts David Cooper Robertson William Taylor Robinson, IIISpencer R. Robinson Raymond R. Roelandt John Caldwell Rogers Erica Michelle Roland Kenneth R. Root Martha Alice Rosenberg James Rottinghaus Thomas L. Rouse Thalethia B. Routt Christopher C. Ruml Soha Tajoddin Saiyed Edward Robert Sanders George Benton Sanders, Jr.Crystal Lynn Saresky Donna Marie Sauer Robert Schaefer Lori Ann Schlarman Thomas David Schneid George StephenSchuhmann Steven Wayne Sebastian Marion D. Seitz Thomas L. Self Gary John Sergent Kathleen Marie Sheehan Dennis William Shepherd William Taylor Shier Jonathan Todd Shipp Paula Jo Shives Thomas Bruce Simpson, Jr.Logan Nicholas Sims Chad Michael Sizemore Sara Grinnell Smith Linda Tally Smith Jenohn LeShea Smith

Scott M. Smith Gwendolyn L. Snodgrass Steven Lee Snyder Mark Steven Solomon G. David Sparks Lloyd Emory Spear Timothy B. Spille Morgain Mary Sprague Deborah Spring Debra Kaye Stamper D. Christian Staples, IIIDavid R. Steele Carey Kathleen Steffen E. Douglas Stephan Michael Lee Stevens Deborah C. Stevens John W. Stevenson John F. Stewart Karen Liles Stewart Mark Alan Stiebel Alicia Ann Still Mary Whitlock Stoddard David Michael Stout E. Frederick Straub, Jr.Sarah B. E. Tankersley John Lewis Tate Barry Michael Taylor Gregory L. Taylor Richard S. Taylor Lescal Joseph Taylor Daniel N. Thomas Brian Neal Thomas J. Hamilton Thompson Jennifer Lee Thompson Melissa Thompson Lindsay Hughes Thurston Landon Jackson Tingle Nathan Blaze Tomlin Gerald R. Toner David Michael Tranum James Thomas Traughber Sadhna True Renae Mechelle Tuck Amy L. Tufts Jervis Patricia A. Van Houten Eric Kent Van Santen

Ronald R. Van Stockum, Jr.Santina O. Vanzant David Todd Varellas Maureen L. Veterano Eric Peter Von WiegenJulie A. Wallace Penny R. Warren Jody Christine Warren Clint Evans Watson Whitney F. Watt Trevor Wayne Webb Harold Roy WeinbergLinsey Walker West Jack A. Wheat John Russell Wheatley Randall L. Wheeler Charles S. Wible Frank A. Wichmann, IIRussell Lynn Wilkey Kenneth ThomasWilliams, IIWesley Kiser Williams Thomas L. Williamson Willis Lee Wilson William C. Wilson, IIISean Michael Wilson Christopher A. Wilson Steven Robert Wilson Robert Albert Winter, Jr.James R. Wood Robert Woodruff Frank C. Woodside, IIIJamhal Lashon Woolridge Joseph A. Worthington Catherine S. N. Wright Rebecca W. Wright Blake Edward Wright Garnetta P. Wylie Mitzi Denise Wyrick Brandon Troy Yarbrough Donald Craig York Daniel Z. Zaluski Deborah Jo Zimmerman Michael Dean Zimmerman

September 1-2 (TH/F) CovingtonNorthern Kentucky Convention Center

September 8-9 (TH/F) Bowling GreenHoliday Inn & Sloan Convention Center

September 20-21 (T/W) OwensboroRiverPark Center

September 27-28 (T/W) AshlandBellefonte Pavilion Theatre

October 4-5 (T/W) GilbertsvilleKy. Dam Village State Resort Park

October 18-19 (T/W) PrestonsburgJenny Wiley State Resort Park

October 25-26 (T/W) LexingtonLexington Convention Center

November 2-3 (W/TH) LondonLondon Community Center

November 30-December 1 (W/TH) LouisvilleKy. International Convention Center

2011 DatesKENTUCKY LAW UPDATE

Dates and Locations


Eldred E. Adams, Jr.Nathaniel K. Adams Daniel T. Albers Barbara Mary Albert Karen Ann Alfano Sharon Kay Allen Brian Craig Allen Roula Allouch John W. Ames Cynthia Miller Armstrong Timothy G. Arnold Vickie Masden Arrowood Thor H. Bahrman William J. Baird, IIIMichael L. Baker Kenton Lee Ball Brian Vincent Banas Stephen Gerald Barker Stephen L. Barker Kimberly Irene Barnard James J. Barrett, IIITimothy G. Barrett Aaron Michael Beck Frank T. Becker Arthur Steven Beeman Kevin Beiting Deedra Benthall Gregory Keith Berry Alonzo F. Berry, Jr.Hugh J. Bode David L. Bohannon Robert K. Bond John T. Bondurant William F. Bottoms Carla Sue Bowens Claude Ray Bowles, Jr.James Patrick Bowling Jill Roland Brady Barbara G. Brand Ira Edsel Branham Michael A. Breen Richard Martin Breen Matthew W. Breetz Mark Russell Brengelman David Joseph Bross Aubrey C. Brown Sherri Porter Brown Kelli E. Brown Elizabeth J. Brown Lyn Lee Bruckner Tyler Doran Buckley Elaine Marie Bukowski Beverly M. Burden Kenneth R. Burgess John Wesley Burkholder, IIIMary Pyle Burns

Frederick M. Busroe, Jr.Cynthia Scott Buttorff Timothy James Byland Kelley Landry Calk Gerry Lynn Calvert Richard H. Campbell, Jr.John Ledyard Campbell Maureen D. Carman Frances E. CatronStephen C. Cawood Timothy K. Chism, Jr.Janis Elaine Clark Robert Keith Clark Carolyn Clark-Cox Michael M. Clarke Rodger L. Clarke Richard H. C. Clay Pamela Kay Clay-Young Tara Jean Clayton Lee Lawrence Coleman Reford H. Coleman James Albert Comodeca Gregory S. Condra Joseph H. Conley Angela E. Cordery James L. Cox Jerry J. Cox Heather Leigh Crabbe Larry J. Crigler Charles J. Cronan, IVSarah G. Grider Cronan Cameron R. Culbertson Jack R. Cunningham Jean Kelley Cunningham Terry Martin Cushing Norman T. Daniels, Jr.Micah Caroline Daniels Wayne C. Daub Michael Davidson Samuel Girdner Davies Benjamin K. Davis Douglas Lee Davis Rodney G. Davis Linda Carol Dawson Edmonde P. DeGregorio Jeffery Bryant Dean William G. Deatherage, Jr.John Michael Debbeler Charles D. Deep Kevin Michael Devlin Richard J. Deye Charley Greene Dixon, Jr.Amy Elaine Dougherty Howard Neal Downing Susan Hanley Duncan Clifford R. Duvall

Robert W. Dyche, IIIJane Winkler Dyche Robert William Dziech Martha Marie Eastman Francis H. Edelen, Jr.Blaine J. Edmonds, IIISteven Alan Edwards Daniel F. Egbers Angela Renee Elder Cynthia Elaine Elliott Barbara Alison Emmons Stanton D. Ernest Kenny Bryan Ernstberger Peter Frank Ervin Philip Carl Eschels Charles Fassler Thomas W. Fitzgerald Robert Louis Fleck Jason Shea Fleming William H. Fortune Shasta Kay Fraley William G. Francis James Michael Francis Mark Sidney Franklin Scott L. Frost Richard J. Gangwish, IIPeter Mark Gannott Robert Dale Ganstine Jane Ellen Garfinkel Jay Randal Garrett Sheila D. B. Gerkin Roger Alan Gibbs James C. Gibson, Jr.James T. Gilbert Barry D. Gilley Thomas C. Glover Steven Matthew Goble David Mark Godfrey Robert Louis Goodin, Jr.Linda Ann Gosnell Allison Brooke Grant Kristi Lynn Gray Robert F. Greene Karen J. Greenwell Thomas B. Griffiths John L. Grigsby H. Philip Grossman Asa P. Gullett, IIISheldon Lee Haden Ryan M. Halloran Bradley Dale Hamblin, Jr.Eric Allen Hamilton Michael R. Hance Traci Snyder Hancock Jennifer B. Hans Paula Lynne Harbour

Mark Douglas Hardy Harold Eugene Harmon Norman E. Harned David Hare Harshaw, IIIChristopher S. Harwood Hydee Harris Hawkins Vicki R. Hayden Jeremy Andrew Hayden Jennie Yon Haymond Michael Roy Head Mary J. Healy F. Richard Heath Mark Evan Heath Sheryl Egli Heeter Francis W. Heft, Jr.Rene B. Heinrich Hiram J. Herbert, Jr.Jane Hampton Herrick Brian Leslie Hewlett Geraldine Kay Hine John Edward Hinkel, Jr.Lisa English Hinkle William L. Hoge, IIIJames D. Holliday John David Holschuh, Jr.Erica Lynn Horn Michael Keith Horn Bonnie Jo Hoskins Craig W. Housman Gary Lane Howard Lisa Peyton Hubbard Joseph D. Hudson David R. Irvin Lettricea L. Jefferson-Webb Walter Charles Jobson Harold M. Johns Gary C. Johnson Rebecca J. Johnson Paul E. Jones Ernest H. Jones, IILawrence Lee Jones, IIBrian Thomas Judy Misty Dugger Judy John Warren Keller Jackie Masden Kendinger Valerie S. Kershaw Daniel M. Kininmonth Randall Loftin Kinnard John Stephen Kirby Virginia Ruth Klette Maria Gorruso Klyza Bruce Andrew Krone La Mer Kyle-Griffiths Shelia Ann Kyle-Reno Heidi S. Lanham

Charles J. Lavelle Bernadette Z. Leveridge Erwin Wayne Lewis Thomas R. Lewis Bobbi Jo Lewis Maurice Reeves Little Nancy Barrett Loucks Christy J. Love Sheryl J. Lowenthal Mark Allen Loyd, Jr.Joanne Lynch Steven Hayden Lyverse Mark Thomas Macdonald Thomas L. Macdonald Robert S. Madden Linda Ray Magruder Ryland F. Mahathey Dennis Charles Mahoney Richard L. Major, Jr.Joanne R. Marvin Frank Mascagni, IIIAllie George Mason, Jr.Charles Ed Massey Kennis Maynard Glenn Stephen McClister Christopher M. McCrary Kathie McDonald-McClure Earl Martin McGuire Martin J. McMahon, Jr.John Gary McNeill J. Christopher McNeill Karen J. T. Meier John Downing Meyers Rosemary Taft Milby Carl Theodore Miller Brendon D. Miller Carolyn Louise Miller Stephen D. Milner Michael Mitchell Donald C. Moore, Jr.Douglas H. Morris, IIRyan Ashley Morrison Jesse T. Mountjoy Amanda J. Mullins Joshua James Mullins Melinda Ann MurphyW. Douglas Myers Timothy Joseph Naville Gregg Y. Neal Frank Kelly Newman Troy Nance Nichols Richard Martin Nielson James Robert Norris Janet McCarty Norton Leila Ghabrial O’Carra Annie O’Connell

Congratulations to the following members who have received the CLE award by obtaining a minimum of 62.5 CLE credit hours withina three-year period, in accordance with SCR 3.680, and renewing the award by obtaining at least 20 hours in subsequent years. The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education.


Stephen M. O’Connor Margaret O’Donnell Edwin Foster Ockerman, Jr.Ann B. Oldfather David Y. Olinger, Jr.Lacy Kent Overstreet Michael A. Owsley Michael Eric Pace Brian Keith Pack Carol B. Paisley Peter David Palmer Michael Thomas Pate Rebecca S. Patterson Arthur Cary Peter, Jr.Allen Carl Platt, IINeva-Marie Polley Kristin D. Pollock Hans George Poppe, Jr.Claud Fillmore Porter Janice Faye Porter Pamela H. Potter Boyce Leigh Powers Nicole M. Prebeck Damon Loyd Preston Cathy Eileen Prewitt G. Kent Price Milton Hance Price Loren Teller Prizant Gregory Keith Puckett Harry B. Quinn Jonathan Abram

Rabinowitz

Daniel Parker RandolphRichard M. Rawdon, Jr.William C. O. Reaves D. Gary Reed David Lawrence Reichert Paul E. Reilender, Jr.Bobby Edward Reynolds Lee D. Richardson Charles E. Ricketts, Jr.Jonathan S. Ricketts James Vincent Riggs Jesse Leo Robbins Jeffery Allen Roberts Erwin Roberts Jimmy D. Robinson Kendall Robinson Mary Gail Robinson Daryle M. Syck Ronning Joseph L. Rosenbaum Robert Allen Rowe, Jr.Thomas Edward Rutledge John C. Ryan John F. Salazar Kyle Ray Salyer Robert E. Sanders Michael R. Sanner Darrell L. Saunders Karen Savir David Thomas Schaefer Michael A. Schafer Jennifer Lynn Scholl Jacqueline K. Schroering

Lee A. Schulz Michael StuartSchwendeman Philip Joseph Schworer Elizabeth R. Seif Richard Allen Setterberg Jimmy Adell Shaffer Beverly Ann Shea Jeffrey E. Sherr Micah Ian Shirts Patrick Alan Shoulders Joseph Arthur Shriver Richard Howard Shuster Shane C. Sidebottom George R. Siemens, Jr.Hamilton B. Simms Mark Albert Sipek Diana L. Skaggs Randy T. Slovin Meggan E. Smith Acena Johnson Smith Valorie Denise Smith Mark Francis Sommer Virginia J. Southgate Herbert B. Sparks Ricky Eugene Sparks Linda Shearer Speed David Edward Spenard Mark Joseph Stanziano Catherine D. Stavros Andrew Martin Stephens Robert Ernest Stephens, Jr.

Robert Johnson Stokes, Jr.Edward H. Stopher Randall Scott Strause Robert Kenneth Strong Nancy Gail Sturgeon Dennis Michael Stutsman Michael P. Sullivan Charles L. Sydenstricker,Jr.Arnold S. Taylor Roderick A. Tejeda Timothy B. Theissen Marguerite N. Thomas Dennis Leo Thomas Crystal Lynn Thompson William Eugene Thro Roy W. Tooms William C. O. Travis Jennifer O. True Lizbeth Ann Tully James William Turner, Jr.Michael J. Van Leuven Richard Allen Vance Marcus Lee Vanover Muriel B. Varhely James Anthony Vaught Gregory Royce Vincent Edwin J. Walbourn, IIITheodore B. Walter Gregory Ward Mervin Wayne Warren, Jr.Melanie McCoy Warren

John Scott Waters, IVLeonard A. Weakley, Jr.Richard McKee Wehrle R. Leonard Weiner John Kevin Welch Martin Irwin Welenken Linda J. West Whitney H. Westerfield Teresa Kay Whitaker Tamela Jane White Allison S. Whitledge Michelle Renee Williams Dale T. Wilson Mildred Gail Wilson William Roy Wilson Susan Michele Wilson Linda Carnes Wimberly Jennifer L. Wittmeyer Andre W. Wood John Greene Wright Eric Paul Wright Gerald Edward Wuetcher Robert C. Yang Mary James Young Joseph J. Zaluski Jennifer E. Zell Wilbur M. Zevely Nicholas A. Zingarelli Donald D. Zuccarello


Kentucky Bar AssociationCLE Office

(502) 564-3795

AOC Juvenile Services(502) 573-2350

Louisville Bar AssociationLisa Maddox • (502) 583-5314

KYLAPAshley Beitz • (502) 564-3795

Kentucky Justice Association(formerly KATA)

Ellen Sykes • (502) 339-8890

Chase College of LawAmber Potter • (859) 572-5982

Kentucky Department of Public AdvocacyCourt Services

Jeff Sherr or Lisa Blevins(502) 564-8006 ext. 236

AOC Mediation & FamilyMelissa Carman-Goode

(502) 573-2350 ext. 2165

UK Office of CLEMelinda Rawlings • (859) 257-2921

Mediation Center of the Institute for Violence Prevention

Louis Siegel • (800) 676-8615

Northern Kentucky Bar AssociationJulie L. Jones • (859) 781-4116

Children’s Law CenterJoshua Crabtree • (859) 431-3313

Fayette County Bar AssociationMary Carr • (859) 225-9897

CompEd, Inc.Allison Jennings • (502) 238-3378

Cincinnati Bar AssociationDimity Orlet • (513) 381-8213

Pike County Bar AssociationLee Jones • (606) 433-1167

Access to Justice FoundationNan Frazer Hanley • (859) 255-9913

State Government Bar Assoc.Amy Bensenhaver • (502) 696-5655

Administrative Office of the CourtsMelissa Carman-Goode

(502) 573-2350, Ext. 2165


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IMMIGRATION AND NATIONALITY CONSULTANT

The Law office of Dennis M. Clare, PSC is available to practice Immigration andNationality Law before all Citizenship &Immigration Offices throughout the UnitedStates and at United States Consulatesthroughout the world. More than 25 yearsexperience with immigration and naturaliza-tion: member of, American ImmigrationLawyers Association. Law Office of DennisM. Clare, PSC, Suite 250, The AlexanderBuilding, 745 W. Main Street, Louisville, KY40202. Telephone: 502-587-7400 Fax: 502-587-6400 THIS IS AN ADVERTISEMENT

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• Professors & Researchers • Physicians & Nurses• IT Professionals • International Employee Assignments

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• Estate and Trust Planning • Real Estate Transactions • Probate Administration

• Business Transactions • Florida Residency Planning • Commercial Litigation

Medical & Professional License Defense

Elder & Good, PLLC offers its services to attorneys,physicians, nurses, dentists, pharmacists and otherlicensed professionals before their state boardsand licensing agencies in Kentucky and Ohio. Weassist our clients with Board investigations, disci-plinary hearings & appeals, board application is-sues and, depending on their particular fields,hospital actions and Medicare, Medicaid & Insur-ance exclusions.

Phone: (502) 365-2800 Fax: (502)365-2801www.eldergood.com

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Preparation and Processing of QDROs for: � Defined Benefit & Defined Contribution Plans. Military, Municipal, State & Federal Employee Plans. � Qualified Medical Child Support Orders. � Collection of past due Child Support/Maintenanceby QDRO.

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Patent, Trademark, Copyright andUnfair Competition Law

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MINING ENGINEERINGEXPERTSExtensive expert witness experience.Personal injury, wrongful death, accidentinvestigation, fraud, disputes, estate valu-ation, appraisals, reserve studies. JOYCEASSOCIATES 540-989-5727.

WHISTLEBLOWER/QUI TAMS:Former federal prosecutor C. DeanFurman is available for consultation orrepresentation in whistleblower/qui tamcases involving the false submission ofbilling claims to the government. Phone: (502) 245-8883 Facsimile: (502) 244-8383 E-mail: [email protected] THIS IS AN ADVERTISEMENT

COURT REPORTING SERVICESDepositions - Arbitrations - ConferencesComplimentary Conference RoomsSteno - Video - VideoconferencingFor transcript accuracy, quick turnaroundand innovative electronic transcripts withcomplimentary hyperlinked exhibits andfull word-search capabilities for bothtranscripts and exhibits, plus complimen-tary audio files contact:

COURT REPORTING SERVICES,INC. 6013 Brownsboro Park Blvd.,Louisville, KY 40207 Phone: (502) 899-1663 E-mail: [email protected] Online: www.courtreportingky.comBe sure to ask about MyOffice Online,your complimentary 24/7 online officesuite.

EXPAND YOUR PRACTICE!VETERANS NEEDREPRESENTATIONLearn how at the Indianapolis, IN April 7-9, 2011 SEMINAR from NOVAwww.vetadvocates.com202-587-5708

Recreational Rentals

KY & BARKLEY LAKES: GreenTurtle Bay Resort. Seventy-five luxuryrental condos, 1-4 BR, new Health Clubwith indoor pool, Conference Center, 2 outdoor pools, Yacht Club, DockersBayside Grille, tennis, beach, watersports and golf nearby. The perfect spotfor a family vacation or a companyretreat. In historic Grand Rivers “TheVillage Between the Lakes.” Call 800-498-0428 or visit us atwww.greenturtlebay.com.

LUXURIOUS GULF-FRONTCONDO, Sanibel Island, Fl. Limitedrentals of “second home” in small devel-opment, convenient to local shopping.

2 BR, 2 bath, pool, on Gulf. Rental ratesbelow market at $2,600/week in-seasonand $1,500/wk off-season. Call AnnOldfather (502) 637-7200.

Employment

Mid Size East End Louisville law firmhas an opening for a tax and transaction-al attorney. This attorney would beresponsible for advice to clients in gener-al business and tax, entity organization,transactional and succession issues.Undergraduate background in accountingor finance a plus, focus in business andtax classes in law school a plus, prior taxand transactional practice experience aplus. Fax resume to Anita Steilberg at502 581-1344 or email [email protected]

Other

Offices available ONE BLOCK from theCourt House on the corner of 6th andMarket St. Two offices available withplaces for secretarial space. Monthlyrent includes: Internet access, faxmachine, copy machine, phone systemwith voicemail and kitchen facilities.Please call 502-807-4422 to schedule atour

Searching for original or copy of willsof Roseanne Reed and John Patrick(J.P.) Hines, husband and wife, bothdeceased in 2010. Please call (502) 581-0870.I. Joel FrocktI. Joel Frockt & Associates

Classified Advertising

The KBA appreciates the support ofour advertisers, but the publication ofany advertisement does not constitutean endorsement by the Kentucky BarAssociation.

LET THIS SPACE WORK

FOR YOU!CALL

502.564.3795

Greg MunsonFormer KBA Deputy Bar Counsel

Available for Representation inDefense of Bar & InquiryCommission Complaints

Inquiry Commission ChargesCharacter & Fitness Challenges

Louisville, Kentucky502-644-9800


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Kentucky Bar Association 201 1 ConventionJune 15-17, 2011

Lexington Convention CenterLexington, Kentucky

Registration Available Soon at www.kybar.org