Supreme Court approves revisions to attorney code

April 16, 2009 | | Comments 6

FRANKFORT — Less than two weeks after two disbarred lawyers were convicted of what some say is the greatest legal theft in the state’s history, the Supreme Court on Thursday unveiled new rules governing attorney conduct.

Supreme Court Chief Justice John D. Minton

Supreme Court Chief Justice John D. Minton

The overhaul — the first of its kind in 20 years — includes a provision that would require attorneys to report misconduct on the part of an attorney or judge.

Other tweaks include changes to the rules about contingency fee agreements, confidential information, trial publicity and the unauthorized practice of law.

The changes take effect July 15.

The overhaul was nearly six years in the making. A Kentucky Bar Association committee began looking to change the professional standards in 2003 after the American Bar Association adopted a Model Rules of Professional Conduct in 2002. Public hearings on the changes were held in 2007 and 2008. The Supreme Court signed off on the 153-page document on Thursday.

“The revised rules reflect thoughtful changes that will bring Kentucky into line with national standards for attorney conduct,” said Chief Justice John D. Minton Jr. “Our goal is to improve public confidence in our state’s legal profession by strengthening attorney accountability.”

Some of the changes in the rules go into greater detail about prohibited behavior or makes changes to the rules because of changes in technology.

But the biggest change is the requirement that lawyers now have to report suspected misconduct of a judge or a lawyer or face disciplinary action. Other states with similar policies have found the reporting requirements an effective tool in rooting out misdeeds, legal scholars said Thursday.

Some lawyers have misgivings about turning in one of their own or even turning in a more senior partner in a law firm, said Linda Gosnell, chief counsel for the Kentucky Bar Association and member of the committee that helped draft the proposed changes.

“It’s going to establish for the bar an expectation that members of the bar will intercede when a lawyer is engaged in serious misconduct,” said William Fortune, a University of Kentucky College of Law professor who helped advise the committee on the changes. “And in some instances, it could prevent a lawyer from doing something injurious to the public.”

The last time the rules were revised was in 1989.

Included in some of the changes is specific language about attorney conduct when they represent multiple clients, which was at issue in the recent criminal trial of former lawyers Shirley Cunningham Jr. and William Gallion.

The two men were accused of taking millions of dollars from 440 former clients they represented in a 2001 settlement over the diet-drug fen-phen. Federal prosecutors, in a nearly seven week trial, said the men deliberately lied to their clients about the details of the $200 million settlement and failed to communicate with their clients.

Evidence during the criminal trial showed that Cunningham and Gallion did not tell their clients that a settlement had been reached and did not ask their clients permission to settle the case. The new rules contain language that says a lawyer must obtain written permission signed by the client to settle a case.

Gosnell said the change was not prompted by the fen-phen case. Those changes were adopted directly from the American Bar Association’s model code.

Many of the proposed changes now require informed consent or a written agreement signed by the client. The rules also expressly prohibit sexual relationships between an attorney and a client unless the sexual relationship predates the hire of the attorney. Although there is case law governing sexual relations with a client, the previous code was not as specific as to what was allowed, Gosnell said.

Cunningham and Gallion were each convicted of conspiracy and eight counts of wire fraud on April 3. A jury has said they need to repay their clients $30 million in addition to turning over more than $20 million of the settlement money that was placed in a nonprofit. Cunningham and Gallion were disbarred by the Kentucky Supreme Court in October 2008.

Angela Ford, a Lexington lawyer who represents the former fen-phen clients in a civil lawsuit, said if someone had reported Gallion, Cunningham and a third lawyer on the case, Melbourne Mills Jr. it is unlikely that the theft would have been prevented because the lawyers took the money soon after the case was settled.

But Ford said she hopes that more lawyers will now step forward and not be afraid if they spot improprieties.

“I think it will force more lawyers to report misconduct in other cases,” Ford said. “Any kind of serious misconduct is more obvious to someone in the profession.There are a lot of lawyers who are very very hesitant to report another lawyer or a judge. I get calls from lawyers all the time who talk about a judge’s behavior but never do anything about it because they’re scared to.”

— Beth Musgrave

Filed Under: FeaturedKentucky Bar AssociationKY CourtsState Government

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  1. Jim Anderson Stivers says:

    Looks like Attorney General Jack Conway could use a refresher course on attendance and priorities.

    Read this:

    This lift is from Justice Watch blog. Notice the date on this story. March 19,2009. This was a few short weeks ago.

    Today the FBI unsealed an indictment which charged Special Judge R. Cletus Maricle who was presiding as the Judge over the cases involving Leon Grider.

    For a politician that wants to be our US Senator there is no mention, whatsoever of Attorney General Jack Conway being involved with this indictment? Why?

    Reports continue to exit from Attorney General Jack Conway’s office that when staff wants to talk to Conway they have to call long distance to Louisville. Some say Conway has been out of the FRANKFORT OFFICE at least 2/3rds of his term.

    THIS suite charges a Special Judge R. Cletus Maricle with criminal wrong doing and no investigation or current statewide media coverage of this news. If there was, I did not find it on a search.

    It’s pretty simple actually. If Attorney General Conway hears of or notices a serious criminal charge has been filed against a sitting Judge then as his duty to the citizens he should be all over this issue. Yet, small town America that is LOOKING FOR JUSTICE is hampered by the lack of participation from the Attorney Generals office. Why. Is there a shortage of Attorneys in Jack Conway’s office?
    Attorney General Jack Conway is ALOOF AND is not so much interested in tracking and prosecuting drug criminals, (elected officials-) as he is the vast, frequently occurring, CIBER CRIMES. That is always good political stuff to talk \announce. But to bust the rear end of a sitting Judge, that is very sensitive. Judges have voters that follow them, regardless of what happens. Maye young Jack was in a box with is moral convictions?

    What did it have to be the FBI that indicted? That should have come from the Attorney Generals Office or Chief Judge Minton,if Minton was in office at the time.

    Why no blogs on this injustice? Why few lead newspaper stories? Why no action by the Governor when he knew of this issue?

    This is an interesting story and a lift from the original story which you can read, if you desire, it is very revealing.

    Russell County Kentucky March 19th, 2009; Today the FBI unsealed an indictment which charged Special Judge R. Cletus Maricle who was presiding as the Judge over the cases involving Leon Grider (charged for allegedly illegally distributing prescription drugs,) James Faller (for allegedly owing wages to employees and a second indictment for witness tampering) and Melinda Wilson (who sued the City of Russell Springs and the Chief of Police for allegedly trying to force her to alter evidence and to have sex with the mayor and record it to be used in a blackmail scheme.)

    For months James Faller, Leon Grider and Melinda Wilson have been screaming that the courts are corrupt and that the police are getting away with murder, literally. Grider and Faller filed a series of lawsuits against the City, the State, the Police and even one the Russell Springs Mayor called Peter Rabbit in his nefarious effort to mislead the public in a speech he gave at the last meeting of the City Commission before the City became a Mayor strong form of Government. The Complaints filed by Faller, Grider and Wilson (who filed separately) allege exactly the charges that the FBI and the United States Attorney’s Office filed against Special Judge R. Cletus Maricle.

  2. Tom Ezzell says:

    The previous poster (Stivers) may have some legitimate complaints about AG Conway, but this post fails to make any good arguments. That the KY AG office isn’t indicting the Clay County crew for the same conduct the feds are is not only normal, but it’s sensible. It costs money to prosecute big cases like that, and the feds get more convictions generally. On top of that, the double jeopardy doctrine prohibits dual prosecution, even in different courts, for the same conduct. As for Justice (not Judge) Minton, as Chief Justice of the Kentucky Supreme Court he has no power to issue indictments. The criminal charges against Maricle and others also aren’t a “suite” or a suit for that matter. How do you know the feds didn’t “shoo” the KY AG off this for fear that local politices would interfere if state officials were the prosecutors. Justice is being done, leave it at that. If you hate Conway for some reason, make a better argument for it. And try posting it somewhere relevant. The underlying article is on a substantially different subject.

  3. Jim Anderson Stivers says:

    Mr. Eaaell,

    You apparently have a background in law, maybe a practicing attorney.

    Chill and wait for the news to break. You probably won’t believe it, even after warrants have been served.

    There exist, a lot more to this than you are aware of.

    As for a place to posit. Seemed like the right place to me.

  4. Jim Anderson Stivers says:



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