Bench & Bar January/February 2025

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vol. 89 no. 1 THIS ISSUE OF THE KENTUCKY BAR ASSOCIATION’S B&B-BENCH & BAR WAS PUBLISHED IN THE MONTH OF JANUARY. COMMUNICATIONS & PUBLICATIONS COMMITTEE EILEEN M. O’BRIEN chair , lexington PAUL ALLEY florence ELIZABETH M. BASS hendersonville , tenn . JENN L. BRINKLEY pensacola , fla . KYLE R. BUNNELL lexington FRANCES E. CATRON CADLE lexington ALLISON I. CONNELLY lexington JAMES P. DADY bellevue KATHRYN D. DUKE louisville JOHN M. GHAELIAN lexington P. FRANKLIN HEABERLIN prestonsburg JESSICA R. C. MALLOY louisville SANDRA J. REEVES corbin JOHN SCHAAF georgetown GERALD R. TONER louisville ZACHARY M. VAN VACTOR louisville SAMUEL W. WARDLE louisville LITANY L. WEBSTER cincinnati , ohio MICHELE M. WHITTINGTON lexington MARK A. WINSOR lawrenceburg

10 The Kentucky Bench & Bar- A Service to the Profession BY EILEEN M. O’BRIEN 12 Kentucky Lawyer Assistance Program a Vital Resource for Legal Professionals BY YVETTE HOURIGAN FEATURE: KBA MEMBER BENEFITS 16 Continuing Legal 18 KBA Member Benefits Overview CONTENTS 2 President’s Page BY RHONDA JENNINGS BLACKBURN 4 Q & A with Chief Justice Laurance B. VanMeter BY JAMES P. DADY AND JOHN GHAELIAN

Education: Enhancing Your KBA Membership BY CASSIE H. COOPER

22 Benefits of the Tyler

Technologies Transition for KBA Members BY CHARLES BYERS

20 Can You Afford Not to Use the KBA Ethics Hotline? BY SHELDON G. GILMAN

PUBLISHER JOHN D. MEYERS EDITOR EILEEN M. O’BRIEN

COLUMNS

26 Northern Kentucky University Salmon P. Chase College of Law 30 Effective Legal Writing BY PROFESSOR SUSAN TANNER

32 Law Practice Management BY STEPHEN EMBRY 28 University of Kentucky J. David Rosenberg College of Law 24 Young Lawyers Division BY DONALD H. COMBS III

MANAGING EDITOR SHANNON H. ROBERTS DESIGN & LAYOUT JESI L. EBELHAR

THE B&B - BENCH & BAR (ISSN-1521-6497) IS PUBLISHED BI-MONTHLY BY THE KENTUCKY BAR ASSOCIATION, 514 WEST MAIN STREET, FRANKFORT, KY 40601-1812. PERIODICALS POSTAGE PAID AT FRANKFORT, KY AND ADDITIONAL MAILING OFFICES. ALL MANUSCRIPTS FOR PUBLICATION SHOULD BE SENT TO THE MANAGING EDITOR. PERMISSION IS GRANTED FOR REPRODUCTION WITH CREDIT. PUBLICATION OF ANY ARTICLE OR STATEMENT IS NOT TO BE DEEMED AN ENDORSEMENT OF THE VIEWS EXPRESSED THEREIN BY THE KENTUCKY BAR ASSOCIATION, ITS BOARD OF GOVERNORS, SECTIONS, DIVISIONS, COMMITTEES, OR MEMBERS. ANNUAL DUES AND IS NOT LESS THAN 50% FOR THE LOWEST SUBSCRIPTION PRICE PAID BY SUBSCRIBERS. FOR MORE INFORMATION, CALL (502) 564-3795. POSTMASTER SEND ADDRESS CHANGES TO: B&B - BENCH & BAR 514 WEST MAIN STREET FRANKFORT, KY 40601-1812 SUBSCRIPTION PRICE: $20 PER YEAR. MEMBERS SUBSCRIPTION IS INCLUDED IN

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Lawyer Wellbeing BY DR. ERIC Y. DROGIN

45 Judicial Conduct Commission 58 Who, What, When and Where 38 KBA Board of Governors Minutes 42 Judicial Nominating Commission BAR NEWS

50 Kentucky Bar Foundation 48 Kentucky Lawyer 52 Continuing Legal Education DEPARTMENTS Assistance Program

Cover photo by Katie Bing, Clerk of the Kentucky Supreme Court Several inside graphics by ©istockphoto.com/JesiEbelhar

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bench & bar

PRESIDENT'S PAGE

the struggle

is real

BY RHONDA JENNINGS BLACKBURN KBA PRESIDENT

T he last three president’s pages, I have essentially used it as a personal diary of my experiences as a lawyer and personal philosophies and see no reason to stop now. Each page, however, while dis closing personal details and beliefs, also has a point. This particular page might be the most personal, but also contains the most important point. The KBA does so much to support Kentucky’s lawyers, but the most important support they give is to those law yers who are suffering from mental health and substance abuse issues. At the banquet of this past year’s annual convention, I was stunned to hear Bruce Simpson speak about his battle with depression and his openness to discuss his struggles and attempted suicide. The brav ery that Bruce showed has stuck with me over the past several months since I heard him speak. Inspired by Bruce, throughout my speaking engagements for the KBA, I, too, have tried to be open about my own battle with depression and dealing with it while practicing law. I didn’t always know that I had depression and, growing up Gen X, it’s not really some thing that people talked about. As I heard Bruce speak at convention, I thought of how suicide also impacted my own life. In my second year of law school, I was called out of class to learn that my father had taken his own life. It was sudden and unexpected.

None of us had any clue. As devastating as it was to lose my dad, I also think it might have saved my life. For quite a while, I had been unhappy in law school. Even though doing well academi cally, I wasn’t getting the clerkship offers I thought my academic record warranted. I was having trouble concentrating and was second-guessing my decision to go to law school in the first place. Where everything had come so easy before, now everything was falling apart. However, until my father died, I didn’t recognize that there was a medical reason for what I was experienc ing. I did not realize that depression was a “thing” and there was treatment for it. Following this revelation, I took some time to seek the help I needed. I deferred law school for a year. I sought treatment. I got a job to pay my bills and got off the stress merry-go-round of law school. I contem plated not going back, but I’m ever so glad that I did. I am sure that when I left law school, many thought they’d never see me again. Something drew me back to the law that I couldn’t explain. Maybe it’s just one more way that fate has been on my side. It would be nice to say there’s a happily ever after, but this is real life so the struggle with battling depression continued and contin ues today. If you care about your work and your clients, you internalize their struggles

and add them to your own. It is a heavy burden for any lawyer, but especially one who struggles with depression and anxiety. So many times, I wondered if I was cut out for this profession. But with medication, therapy, and strength of will, I have learned that I can do it and do it well. The work that the KBA does to assist attor neys who struggle with mental health and substance abuse (and I believe there are more of us out there than we care to admit) is vital to protecting our own. I wish that such services had been available or known to me as a young lawyer. It is important that all attorneys know the availability of these services, young or old. If you need help, the KBA is here to help with abundant resources for those who ask. When I made the commitment to serve as KBA president, I made a promise to do so openly and honestly. If my disclosures help one person deal with their own issues, then it will be well worth it. I wish that people talked about it more when I was young. Things might have turned out differently in my family. I’m grateful that Bruce Simpson is here, not only for his family’s sake, but to share his story. If he can be so brave and open, how can I do any less?

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january/february 2025

Q&A WITH CHIEF JUSTICE Q

& A WITH CHIEF JUSTICE LAURANCE B. VANMETER

BY JAMES P. DADY AND JOHN GHAELIAN

As you leave the bench and the post of chief justice what is your biggest concern about the judiciary and the legal profession? One comment that I consistently hear from trial judges is a decline in professionalism among members of the bar. The incidents include casual dress to court while representing clients; apparent inattentiveness to showing up timely for court; apparent lack of prepa ration and readiness to proceed for motions, hearings, or even trial. Too often, lawyers seem to consider pre-trial orders as mere guidelines and not as binding directions from the court. In the appellate courts, we also see that but more often in the form of failure to abide by the Rules of Appellate Procedure. Whether declining professionalism is due to inadequate educational training, a lack of mentoring, or symptomatic of 21 st Century America is difficult to say. But if enough clients lose cases due to sloppy lawyering, that will merely fuel the belief of some that our judicial system is broken. And, unfortunately, I hear and observe the same about some members of our judiciary. The age of social media, I think, has contributed to this. Some judges appear to believe that social media postings are not subject to the Code of Judicial Conduct. SCR 4.300. The Preamble to those rules states that judges should be dignified and, in addition, accept constraints on their personal lives that are not imposed on the public at large. While we have attempted to bring this point home to our judges, it seems that the “offenders” do not consider their actions are over the line. Conversely, what gives you the most confidence and hope about the judiciary and the legal profession?

During your career what was the most challenging case that you worked on?

In 2003, the Lexington-Fayette County Urban County Government passed the first county wide smoking ban in Kentucky. Unfortunately for me, I drew the case in the midst of my running for the Court of Appeals. I disclosed to all counsel that I was a non-smoker, but that our family farm, at the time, grew tobacco. I also knew that opinions on the propriety of the ordinance, i.e., “the proper role of government,” were polarizing, not only in Fayette County but also in the other ten counties of my appellate court district. My law clerk at the time questioned whether this case was one in which we needed to issue a ruling before the November election. My response was, “Emily, if I can’t make a difficult decision, not only do I not need to be on the Court of Appeals, I don’t need to be a judge at all.” In a sense, this case encapsulated one of our Rules of Judicial Conduct, that “[a] judge shall not be swayed by public clamor or fear of criticism.” SCR 4.300, Rule 2.4(A). When our research disclosed the authority of local governments to enact ordinances related to public health, the legal decision, which was affirmed by the Kentucky Supreme shortly thereafter, was not especially difficult. Lexington Fayette Cnty. Food & Beverage Ass’n v. Lexington-Fayette Urb. Cnty. Gov’t , 131 S.W.3d 745 (Ky. 2004). But the decision stands out in my mind since it was the first really high-profile case I had.

Notwithstanding almost 31 years in the judiciary in which I have presided over hor rific criminal cases, heart-wrenching family cases, and cases in which judges and lawyers have violated the trust reposed in them, I still believe that most people are good and want to do the right thing. Sometimes, they just need to think through some bad options before getting to the right one(s). With that thought, almost all our judges, clerks and lawyers are good people and ded icated public servants. This knowledge gives me hope and confidence.

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What advice would you give to new lawyers? My advice to new lawyers is to work hard, ignore office gossip, and jealously guard your reputation, especially for honesty. When I was still in practice, I caught another lawyer in an absolute lie. That situation was worked through, but the one thing I knew about this lawyer was that he had a problem with the truth. When I became a judge, the lawyer appeared in front of me on occasion. I never held what I knew about the lawyer against his client, but I also made him prove everything he ever said. In other words, I was never able to afford him a presumption of truth and veracity that I might have otherwise to an officer of the court. So, to new lawyers, zealously represent your client, but maintain your reputation for honesty. You never know when opposing counsel might become a judge! Obviously, many other people have been involved over my career, my children, Browning, J.T., Charles and Jennie; my siblings, George, Tom and Carlisle who have always been sup portive; the rest of my extended family; many, many friends who worked on my campaigns in various ways; and, of course, my wife, Lucy. Lucy and I have been together since 2015. I was already planning to run for Supreme Court in that year, 2015, so date night over two years frequently included name tags! I greatly appreciate her patience, understanding and advice in that effort. Were there any people that had a significant impact on your career? If so, who were they and can you describe their impact? My parents, George and Carla VanMeter. Parents instill in their children ethics and habits that last a lifetime. My parents were about being kind to others, doing the right thing, working hard and trying one’s best in every endeavor. During high school and college, I worked for my dad on the farm, which meant getting up at 6:00 a.m. and coming home late afternoon or early evening. When I ran for Supreme Court, I had a day when I was putting up signs in Jessamine County before dawn, had lunch at an event in Boyle County, then went to Franklin County to meet officials and supporters, then returned to Anderson County for a dinner, and then headed back to Jessamine to put up more signs. Dawn to dusk. When I got home, I called Lucy Ferguson, now my wife, and told her of my day concluding with the comment that I wish my dad had been with me. The moment I said that, I realized he had been with me all along. My first wife, Lucy Bryans VanMeter. When I decided to pursue a judicial career, her exact words to me were, “You want to be a judge, be a judge. I’m going to raise your children.” In Kentucky, judicial service can involve a political campaign, especially early in one’s career or if one attempts to move to higher judicial office. Lucy never warmed to the role of “polit ical spouse.” Lucy and I have four children and she was an exceptionally good mother. Her devotion to our family permitted me to pursue each of the three lower rungs of Kentucky’s judiciary. Lucy died suddenly of a cerebral aneurysm in July 2010. William T. Bishop, III. Buddy Bishop was my main legal mentor at Stoll, Keenon & Park. He had an equine law practice with a stable of clients (pun intended) that was truly remarkable. Equine law, however, is shorthand designation for “general practice of law,” which entailed business organizations and planning, real estate, taxation, uniform commercial code, horse sales/purchases, stallion syndications, estate planning, trusts and estates, with a little bit of litigation thrown in. Buddy taught me how to be a lawyer, and instilled the values that there is a reason for everything we do, do your work, do not bother me unless absolutely necessary and don’t mess it up! And, Buddy had about five clients that he really liked to work for, so everything else flowed to me. A great situation for a young lawyer. William M. Lear, Jr . Bill Lear was another SK&P lawyer. Bill was also in the legislature at the time I first got appointed to district court. I believe his influence with Governor Brere ton Jones got me the nod in that appointment. Bill remained a political mentor, especially during elections.

If you could turn any dissent, you authored or joined, into a majority opinion, which one would you select and why? Every one, because I was right! Judge Paul Gudgel always advised that judges speak only through their opinions and orders, and no other way. Out of respect for my colleagues, past and current, I will adhere to that advice in this instance. That noted, written dissents are valuable, even short ones, since they serve to point out how the dissenter(s) disagree with the majority. If a judge either concurs in result only or dissents without opinion, then the parties, lawyers and other judges are left wondering what exactly was the point of disagreement. That point of disagreement might be very important for the next case when the facts might be slightly different.

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bench & bar

Q&A WITH CHIEF JUSTICE

During your career you served on every level of the judiciary. What were the particular challenges of each position and what did you enjoy the most about serving in those positions?

The Supreme Court has a different way of doing business than the Court of Appeals, but in a lot of ways the case work is very similar: reviewing briefs and trial records and rendering opinions. Obviously, one difference is that the Supreme Court is the final word, definitely on state constitutional and statutory interpretation and, as a prac tical matter, on federal interpretation (since the U.S. Supreme Court takes so few cases). Another difference is that the lower courts tend to anger individual parties, whereas the Supreme Court can anger half the Com monwealth in one swoop! I have enjoyed every level, although as an outgoing people person, the appellate courts can be isolating in ways that the trial courts are not. Trial judges tend to see a constant flow of people in the courtroom and in chambers.

I will confess that in my first year as district judge, my criminal law skills were non-ex istent. When an issue arose for which I was unsure of the resolution, my suggested solution initially was a memorandum from both parties, “not to exceed five pages.” That was usually met with pushback since district court has such a high volume of cases. Luckily, I had five very experienced colleagues, Judges Clark, Hayes, Horne, Isaac, and Tackett, who were glad to take this rookie under their wings. Then, after five years, I moved to circuit court, which, at that time, included a family docket. Obviously, I had to get more famil iar with KRS Chapters 401 to 407, governing domestic relations. And in contrast to district court, where most trials were crim inal or small claims, circuit court includes much more substantive civil disputes which require detailed knowledge of the civil rules. And, as before, Judges Adams, Clark, Isaac, To answer a lot of questions, I first look at the history. Prior to the adoption of the 1976 Judicial Article, Kentucky’s four constitutions provided differing methods of selecting the Chief Justice. Kentucky’s 1792 and 1799 Constitutions do not refer to the office of Chief Justice at all, but give the Governor the power to appoint with the advice and consent of the Senate “all offi cers, whose offices . . . shall be established by law, and whose appointments are not herein otherwise provided for[.]” Ky. Const. of 1799, art. III, § 9; Ky. Const. of 1792, art. II, § 8. At its first session, the legislature, in “[a]n Act establishing the Court of Appeals,” provided that “the court of appeals shall consist of three judges, . . . one of them shall be called chief justice of Kentucky . . . and shall be commissioned and have precedence accordingly.” Act of June 28, 1792, ch. 24, § 1, 1 William Littell, The Statute Law of Kentucky 101.

Noble, Overstreet, Paisley, and Payne were always available to advise. Moving to the Court of Appeals, I was again blessed with wonderful colleagues and my time in the trial courts provided great preparation. The main challenges involved learning the flow of the work, specifically how cases were assigned and opinions ren dered. One part of opinion writing which I learned was that if a presiding judge pre sented a draft with which I might disagree, then my best approach was to send a short email expressing my thoughts. If one of the other judges seemed interested, then we might continue that discussion. If my thoughts, however, were a “no go,” then that short email became the basis for a short dis sent and perhaps the Kentucky Supreme Court might take notice. That way I did not waste two weeks writing a great dissent on an unpublished opinion. The 1850 Constitution not only changed the selection process for judges, from guber natorial appointment to election, but also altered the selection of Chief Justice. This constitution established eight-year terms for the appellate judges and staggered those terms so one appellate judge was elected every two years. Ky. Const. of 1850, art. IV, §§ 3, 6. As to the selection of the Chief Jus tice, the 1850 constitution provided “[t]he judge having the shortest time to serve shall be styled the Chief Justice of Kentucky.” Id. at § 6. The 1891 Constitution maintained this “mechanical” method of selecting the Chief Justice, but instead of designating the judge having the shortest time to serve altered the selection to “[t]he Judge longest in commis sion as Judge of the Court of Appeals[.]” Ky. Const. of 1891 § 123.

The leader of one of the three branches of our tripartite system is chosen by seven people out of public view. Can you explain the process by which the chief justice is chosen?

The 1976 Judicial Article did away with the mechanical selection process and merely provides “[t]he Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.” Ky. Const. § 110(5)(a). I have been involved in three elections for Chief Justice: one which re-elected Chief Justice John Minton, one which elected myself, and the most recent which elected Chief Justice Debra Hembree Lambert. In each of those elections, the voting procedure was deter mined by the Court and varied slightly.

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The Kentucky Supreme Court in this era, and probably in many others, strikes down acts of the General Assembly. There is always the danger of relations between branches being impaired. Any evidence of that in Kentucky? Probably? Since the early days of the Commonwealth, Kentucky’s highest court has been ruling that legislative acts infringe either the federal or state constitution. The most prom inent of these early decisions is Lapsley v. Brashears , 14 Ky. (4 Litt.) 47 (1823), in which the Court of Appeals, then Kentucky’s highest court, held unconstitutional debt relief legislation in violation the constitution’s prohibition of impairment of contract, asserted the primacy of judicial review and precipitated the “Old Court/New Court” controversy. In the course of that opinion, the court stated: In proceeding with this examination, the court is not unmindful of the solemn obligations which are imposed upon it by the duty of its station. The question is one involving the power of the legislature in relation to a subject upon which it has not for the first time acted, in the passage of the act under consideration, and the many private interests which, it may be supposed, may be affected by the decision, have produced in the court a deep sense of its duty, and induced it to bestow upon the subject all that deliberation and reflection of which it is capable. In the passage of the act, the legislative department of the government, acting, as it is presumed it did, under the conviction of the paramount authority of the constitutions, must be supposed to have entertained the opinion, that no provision contained in either of those constitutions is violated by any thing contained in the act. But it is not in the opinion of the legislature that the court is to search for the true meaning of the constitution. The high respect due from the judiciary to that department of government, should at all times induce the court not to pro nounce upon slight conjectures, that the legislature has transcended its power in the enactment of law. But the court is not to adopt the opinion of the legislature upon trust merely. The constitution has made the judiciary an independent and co-ordinate department of the government, and its opinions must be the result of its own reflections and deliberations. Each department, when acting within its proper sphere, must decide for itself upon the constitution; but both must concur in favor of the constitutionality of a law, before that law can be enforced upon the people. 14 Ky. at 52. Lapsley , however, was not the first cases in which the Court had held a legislative act unconstitutional. That honor appears to have gone to Stidger v. Rogers , 2 Ky. (Sneed) 52 (1801) and Enderman v. Ashby , 2 Ky. (Sneed) 53 (1801), which were decided almost two

Were there any judges, justices, or legal thinkers that significantly impacted your judicial philosophy? If so, who were they and can you describe their impact? In terms of opinion writing, Judge Gudgel and Judge Robert W. Dyche, III, on the Court of Appeals, were known for writ ing concise yet thorough opinions that addressed the issues at hand and nothing else. I have tried to adhere to that guideline. As to an overarching philosophy, I sup pose the starting point was my training as a transactional lawyer in which we were trying to draft documents in order to accomplish our client’s goals, so that other lawyers, and, God forbid, judges would read them the same way. In other words, what does the constitution, statute or case law say? I do not know that I started out think ing in these terms, but I am reminded of an exchange said to have occurred between Justice Holmes and Judge Learned Hand. As they parted one day, Judge Hand said “Do justice, sir!” Justice Holmes replied, “That is not my job. It is my job to apply the law.” See Michael Herz, “Do Justice!”: Variations of a Thrice-Told Tale, 82 Va. L. Rev 111 (1996). I have never been comfortable in making a decision without some authority for a ruling. If a judge always makes rulings on what he or she subjectively thinks is the fair thing, then pretty soon there is no law. No lawyer, transactional or litigator, can advise a client because no one can predict what the judge’s decision will be.

years before the Supreme Court decided Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803). Because Lapsley involved high pro file, “priority” legislation and precipitated a constitutional crisis in which the legislature attempted to remove all the judges involved, it is the case which is remembered. At my formal investiture as Chief Justice, I acknowledged that, in the Court’s adju dicative role, this potential conflict will always exist. Importantly, however, both the Court and the Legislature, in our respective spheres, play a role in providing prompt and efficient judicial services to the people of the Commonwealth. As a result, we need to always work together. Hopefully, we have done that in my eight years on the Court and in my two years as Chief Justice.

What are you the proudest of in your career to date? I am proud that I stood for election seven times (four of which were contested) and never lost, meaning that the voters trusted my judgment in applying the law and making decisions that comported to the constitutions of the United States and Kentucky. I am proud that when I ran for Kentucky Supreme Court every one of my opponents in prior contested races supported my candidacy. I am proud that when someone is thinking of running for judicial office, they frequently call me because I “know how to do it.” (This contrasts to 1994, when, I am told, Governor Jones was advised by some, “don’t appoint VanMeter; he can’t win!” The best revenge.). I am proud that in almost 31 years as a judge, I never committed and was never charged with a violation of the Code of Judicial Conduct, not even a private admonition or reprimand. I am proud that my colleagues elected me as Chief Justice, trusting that I was the right person to lead the Kentucky Court of Justice. And, I am proud that my two marriages survived my judicial career (albeit the first ended due to my wife’s sudden death) and I, to this point, have reared four children who seem to be relatively happy, law-abiding citizens.

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bench & bar

Q&A WITH CHIEF JUSTICE

With respect to appellate advocacy, what are common mistakes that practitioners make? Conversely, what sets the best appellate advocates apart from the rest? From my perspective, the best appellate advocates can simplify a case to its core issues and communicate those issues to the court in a way that is easily digestible. The most effective attorneys I’ve seen argue before the Court of Appeals and Supreme Court have offered to the court a clear, simple path to a solution in their case. Along with that, I think the best appellate advocates also have an appreciation for the practical implications of the court’s holding in their case and can consider how the outcome of a given legal issue will impact not only their client, but also the practice of law and the public in general. And finally, the best appellate advocates are extremely well-prepared. They have an in-depth understanding of the facts of the case, the legal arguments made or not made in the trial court, and where in the record their factual assertions and arguments are supported. That level of preparation often results in a simple, clean argument that can be presented to the court. As to common mistakes of appellate advo cates, I think many attorneys fall into the trap of overcomplicating their arguments. While many of the case that make their way to the appellate courts, and especially the Supreme Court, are complex and require a high-level understanding of a given legal issue, the court will most often look for the solution that makes the most common sense. Having an in-depth understanding of the legal theories supporting an argument is important, but oral arguments and appel late briefs should not take the place of law review articles. Second, I think appellate attorneys are sometimes too quick to dis miss arguments that they do not perceive to be clear winners. Occasionally, the court will adopt an argument that is not the main subject of the parties’ briefs. So attorneys should be prepared to consider and discuss all arguments that are feasible in their case, not just the ones they would discuss in the first or second section of their appellate brief.

The bench and bar are multiple years into the electronic filing protocol. Has this been a labor-saving innovation, for example are headcounts down in clerks’ offices around the commonwealth? Do you envision a day when paper files are eliminated altogether? The Supreme Court first mandated electronic filing for litigants in certain case types in July of 2022. As of January of 2025, electronic filing is mandatory in the majority of civil case types. In March of 2024, the Court also required all circuit and district judges to electroni cally enter orders in all case types in which electronic filing is mandatory for litigants. Just this past year, the Administrative Office of the Courts contracted for new case management and electronic filing systems to be used in our trial courts. Those new systems will be rolled out to each county over the coming years. I would not say that electronic filing has, so far, reduced the number of employees needed in clerks’ and judges’ offices. But electronic filing is a big change from the way our judges, clerks, and litigants were operating just a few years ago, and we’re still figuring out how to implement this new process in a way that is efficient and reduces the workload for everyone. I expect efficiency in court operations to increase dramatically as we become more proficient in electronic filing over time. The transition to electronic filing is a significant effort with a long-term goal in mind. The Court anticipates moving trial courts to a completely electronic record—and therefore eliminating the need for paper files altogether—at some point in the near future. How quickly that moment arrives will largely depend on the rollout of the new case management

and electronic filing systems, which we expect to streamline the process for electronic filing for judges, clerks, and litigants.

On the farm in Clark County. March 2020. Good way to get out of the house during Covid!

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You’re still relatively young at 66 at the end of your judicial career. Can you share what your plans might be? Still more to be revealed. I have some writing proj ects in mind and have four grandchildren to visit. And there will be opportunities to look for Native American artifacts on the farm.

Chief Justice VanMeter showing Lou Anna Red Corn his father’s and his artifact collection.

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9 bench & bar

FEATURE: KBA MEMBER BENEFITS

THE KENTUCKY BENCH & BAR- A SERVICE TO THE PROFESSION BY EILEEN M. O’BRIEN,

CHAIR OF THE COMMUNICATIONS & PUBLICATIONS COMMITTEE AND BENCH & BAR EDITOR

Page one of each issue of the Bench & Bar states its purpose and provides an abbre viated description of the magazine. The editorial guidelines for the magazine con tain more details concerning the magazine’s goals and objectives: 1 The Bench & Bar magazine, the offi cial publication of the Kentucky Bar Association (KBA), is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improv ing the quality of legal services for the citizenry. It is a bi-monthly publi cation, published in January, March, May, July, September and November, in a format that both edifies and entertains the reader, and keeps the Bar informed on current issues and events within the legal profession. Within the Bench & Bar is a section called the Kentucky Bar News. Its purpose is to update members on committee and section events, local bar association events, news from Kentucky law schools, KBA-spon sored continuing legal education (CLE) seminars and events, and features of potential interest to KBA members. I. Statement of Purpose-In addi tion to the above-stated objectives, the purpose of the Bench & Bar magazine is to provide articles of general professional or scholarly

interest as a means to enhance and enrich the legal profession. Articles, primarily written by Kentucky attor neys, judges, and legal professionals, are intended to provide the most interest and benefit to our readers. We strive to publish articles that express the ideas and views of our members and display well-reasoned analysis. While we discourage both commercial writings and clear advo cacy pieces, we may choose to flavor our publications occasionally with controversial articles, and welcome such submissions as well as editorial comment. Rarely, articles on certain sensitive or social or political issues may be selected for publication to the membership for educational pur poses only. However, these articles must be balanced and are restricted by the mandates of Keller v. State Bar of California , 496 U.S. 1 (1990). We encourage well-written articles pertaining to Kentucky law that are serious, yet are not dull, and are of interest to significant segments of the Bar. Frequently, articles are selected or solicited based on a predeter mined area of specialty or theme; however, articles of significant interest or quality are not declined based on subject matter. Also, casual, humorous and general interest arti cles and artwork written about or prepared by Kentucky lawyers are welcomed.

The goals are appropriate and laudable, and I could not do a better job of describing the benefits for the members of the Kentucky Bar Association. As a long-term member of the editorial board, I hope to share with you my insight into the dedication of the members of the board as well as the pro fessional staff and leadership of the KBA. These individuals continue to be of maxi mum assistance and relevance to Kentucky judges, lawyers and law students. Members of the board bring a broad base of experi ence to their service. They work to craft an immensely relevant publication which iden tifies significant areas of legal practice and significant developments in the law. These areas then become the subject of often nuts and-bolts, how-to, and practical articles for those engaged in the practice of law. The members of the Board share the stresses and difficulties of legal practice and those areas of lawyer health and wellbeing also become topics for articles. Some recent examples illustrate the involve ment of the magazine and Bar leadership to identify and help to address challenges faced by the members of the Bar: 1. For several years, the Board received more and more information about the existence of “legal deserts” within the state. In 2022-23, then KBA President W. Fletcher Schrock appointed past-President J. D. Meyer to head a Rural Practice Task Force. The December, 2023 issue of the magazine was devoted to a dis cussion of the issue and efforts to

10 january/february 2025

ENDNOTES 1 Information regarding the submission of mate rial to be considered for publication is accessi ble on the KBA website, www.kybar.org. 2 Archived copies of the Bench & Bar are avail able on the KBA website, www.kybar.org. ABOUT THE AUTHOR EILEEN M. O'BRIEN prac tices with the firm of Osborne Family Law in Lexington and has been a long-serving member of the Bench & Bar editorial board. and members of the editorial board, I’ve come to appreciate that the Bench & Bar serves a far greater purpose in establishing and maintaining our professional commu nity. That purpose is caring for and serving the lawyers of Kentucky.

alleviate the problem from a wide variety of sources. 2 2. Kentucky has experienced signifi cant instances of lawyer suicides, and information from disciplinary cases heard by the Board of Bar Governors indicated that both addiction and mental health issues surfaced in the majority of the cases presented to the Board in formal disciplinary matters. The Bench & Bar has devoted, and continues to devote significant space to discus sion of the confidential resources available through the Bar’s Lawyer Assistance Program for attorneys dealing with issues which affect both their competency to practice and well-being. 3. After editorial board members expressed concern over the increas ing number of new practitioners who seemed to lack mentors and were, in effect, opening individual

practices with little in the way of resources or support, a deliberate effort has been made to include articles and information to assist those attorneys. Practice point ers, checklists and even a basic description of various practice areas to demystify potential opportuni ties are frequently included in the publication.

These efforts, and the individuals partic ipating in them, are examples of what a community of legal professionals does for its members: sharing information, pro viding support, supplying resources, and celebrating our unique profession while recognizing the toll it can take. When I first joined the editorial board, I saw it as an opportunity to maintain some contact with the academic community I enjoyed in law school: interesting articles authored by attorneys with specific expertise on the topic. Over the years, while that academic community is very evident with the staff

11 bench & bar

FEATURE: KBA MEMBER BENEFITS

KENTUCKY LAWYER ASSISTANCE PROGRAM A VITAL RESOURCE FOR LEGAL PROFESSIONALS BY YVETTE HOURIGAN

T he Kentucky Lawyer Assistance Pro gram (KYLAP) is a vital resource for legal professionals in the Common wealth, offering a wide range of services designed to support law students, lawyers, and judges who may be struggling with personal and professional challenges. The program was formerly known as Lawyers Helping Lawyers and beginning in the 1980s started as an unfunded, volunteer-only orga nization begun by a group of lawyers who wanted to help other lawyers who were struggling with substance use disorders (pri marily alcoholism). For an excellent history of KYLAP’s 40 years of service to Kentucky’s legal community, see The History of KYLAP: 40 Years of Lawyers Helping Lawyers in the September/October 2022 edition of the Kentucky Bench & Bar. Kentucky Lawyer Assistance Program was established in 2002 under the authority of the Kentucky Supreme Court Rules 3.900 et seq. KYLAP operates as a confidential and independent program aimed at promoting the well-being of the legal community as a core component of competence as defined in Supreme Court Rule of Professional Responsibility 3.130(1.1) ( see Comment (7)).

CONFIDENTIALITY AND TRUST When a law student, lawyer, or judge seeks assistance for themselves (a first party or self-referral) or calls seeking assistance for another member of the legal community (a third-party referral), SCR 3.990 provides that all communications to KYLAP and all information gathered, records main tained and actions taken by KYLAP shall be confidential , shall be kept in strict confi dence by KYLAP’s staff and volunteers, shall not be disclosed by KYLAP to any person or entity, including any agency of the Court and any department of the Association, and shall be excluded as evidence in any pro ceeding before the Board of Governors or Office of Bar Admissions. Confidentiality is mandated and not discretionary. Absolute confidentiality is essential in creating a safe environment where legal profes sionals can seek help without fear

of professional consequences. To answer the questions we receive most often about KYLAP confidentiality, our scope of services, and prohibited activity, we created the chart on the next page that cites the Supreme Court Rules appli cable to KYLAP services and confidentiality.

the key to recovery

All of the assistance remains COMPLETELY CONFIDENTIAL, pursuant to S.C.R. 3.990.

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CORE SERVICES KYLAP's primary mission is to assist legal professionals who may be facing difficulties related to mental health, substance misuse including alcohol, or other personal issues that could impact or impair their ability to practice law effectively. The program offers several key services to address these concerns:

CONFIDENTIAL ASSESSMENT AND REFERRAL One of the cornerstone services provided by KYLAP is confidential assessment and referral. Legal professionals can call KYLAP for a referral to a mental health professional who will help evaluate their current issues or circumstances. Based on this assessment, KYLAP can offer referrals to treatment pro viders, therapists, or other resources so the individual receives specialized help. KYLAP staff do not practice medicine nor provide

Recovered attorneys give back through peer mentoring, leading mutual aid meetings, as continuing legal education speakers, and Commission members. The volunteer net work is crucial in extending KYLAP's reach and effectiveness. If you’re a person in recovery from sub stance use disorder or other mental health issue with two years of sustained recovery, consider becoming a KYLAP volunteer. You can learn more at www.kylap.org/ get-involved/. EDUCATION AND PREVENTION KYLAP is committed to proactive mea sures promoting well-being within the legal community. The program offers numerous continuing legal educational programs and resources aimed at preventing substance misuse, addressing mental health issues, and other challenges that can affect legal professionals. These initiatives include workshops, seminars, and informational materials designed to raise awareness and

provide strategies for maintaining personal and professional well-being.

SPECIFIC AREAS OF ASSISTANCE

KYLAP's services extend to a variety of spe cific areas that are particularly relevant to the legal profession: SUBSTANCE USE DISORDER (MISUSE AND ADDICTION) Recognizing the high prevalence of sub stance use disorder within the legal profession, KYLAP offers specialized sup port for those struggling with alcohol or other drug addiction. This includes peer support, referrals to treatment programs, aftercare assistance, and ongoing support throughout the recovery process. This includes three weekly mutual aid support meetings on zoom and in person. Meetings are confidential and are by invitation only. For more information, visit our website at www.KYLAP.org.

professional therapeutic services. VOLUNTEER-LED PEER SUPPORT

KYLAP recognizes the power of peer sup port in recovery and well-being and relies heavily on the support of volunteers in the legal community. KYLAP volunteer attorneys have personal experience with overcoming similar challenges. They act as peer mentors offering empathy, guidance, and encouragement to those seeking help.

13 bench & bar

FEATURE: KBA MEMBER BENEFITS

MENTAL HEALTH REFERRALS AND SUPPORT KYLAP addresses a wide range of other mental health concerns, including depres sion, anxiety, stress, and burnout. We connect legal professionals with mental health resources and provide support throughout their journey towards improved mental well-being. We work with our Employee Assistance Program to assist you in finding providers who are within your insurance network, in your community or who provide telehealth services, that are taking new patients. FINANCIAL ASSISTANCE FOR MENTAL HEALTH CARE KYLAP also offers, with assistance from the Kentucky Bar Association, four free mental health visits for any lawyer who requests them. Your call to KYLAP is all it takes to qualify you for four free confiden tial mental health visits with a provider in your area. When available, we will join you with a provider who takes your insurance (including Medicare and Medicaid) so you can continue with counseling using your own coverage.

In addition, the KYLAP Foundation, Inc., founded in 2014, provides forgivable loans to lawyers in need of mental health care who are currently without sufficient resources to obtain it. For information on the KYLAP Foundation, visit www.kylap. org/get-involved/#assistance. OUTREACH AND ACCESSIBILITY KYLAP strives to make its services easily accessible to all members of the Kentucky legal community. The program maintains a 24/7 helpline, ensuring that support is available whenever it's needed. This is not a crisis line. For crisis assistance, call 988 any time 24/7. Additionally, KYLAP conducts outreach efforts to raise awareness about its services and to destigmatize seeking help within the legal profession. COLLABORATION WITH OTHER ORGANIZATIONS To provide comprehensive support, KYLAP collaborates with various organizations including partnerships with bar associa tions, law schools, treatment centers, and mental health organizations. These col laborations expand the range of resources available to those seeking assistance. During the pandemic we partnered with the

Department for Behavioral Health, Devel opmental and Intellectual Disabilities, to offer dozens of evidence-based behavioral health training opportunities via Zoom, including "Question, Persuade, and Refer (QPR)" for suicide prevention, and "Mental Health First Aid (MHFA). We currently partner with the American Foundation for Suicide Prevention for the nation’s first online mental health screening program tailored specifically to legal profes sionals. To access this free screening, go to https://www.kylap.org/resources/#isp. In 2025, we’re excited to partner with the National Alliance for Mental Illness (NAMI KY) to facilitate peer-led mental health and well-being programs, free to KBA members. For legal professionals who may be required to participate in monitoring programs due to disciplinary issues or as part of a recov ery plan, KYLAP offers structured support and monitoring services. These programs are designed to help individuals maintain their recovery and professional standing while providing accountability and support. RESOURCES FOR LAW STUDENTS Recognizing the unique challenges faced by law students, KYLAP extends its services to this group as well. The program offers support for students dealing with academic stress, substance misuse issues or other mental health concerns. By intervening early, KYLAP aims to set the foundation for a healthy legal career from the start. TECHNOLOGY AND ONLINE RESOURCES In keeping with modern trends, KYLAP leverages technology to enhance its services. The program's website (www.kylap.org) serves as a hub of information, providing access to resources, self-assessment tools, and educational materials. MONITORING AND SUPPORT PROGRAMS

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14 january/february 2025

ABOUT THE AUTHOR YVETTE HOURIGAN is a former trial lawyer, and director of the Kentucky

ADVOCACY FOR WELL-BEING IN THE LEGAL PROFESSION Beyond its direct services, KYLAP plays a crucial role in advocating for policies and practices that promote well-being within the legal profession. This includes work ing with bar associations, law firms, and other stakeholders to create environments that support the mental health and overall well-being of legal professionals. CONCLUSION The Kentucky Lawyer Assistance Program stands as a beacon of support for the state's legal community, offering a comprehensive array of confidential services designed to address the unique challenges faced by legal professionals. From four free confidential counseling sessions by our third-party providers, to other referrals, educational programs and peer support, KYLAP pro vides a vital safety net for attorneys, judges, and law students addressing personal or professional issues.

The program's commitment to confidential ity, accessibility, and holistic support makes it an invaluable resource in promoting the well-being of Kentucky's legal profession als. By addressing issues such as substance misuse, mental health concerns, and career challenges, KYLAP supports individual legal professionals and also contributes to the overall health and integrity of the legal system in Kentucky, thereby fulfilling its charge pursuant to SCR 3.025 to insure a continuing high standard of professional competence on the part of the members of the bar. As the legal profession continues to evolve and faces new challenges, the role of KYLAP becomes increasingly important. By providing a comprehensive support system, KYLAP helps ensure that Kentucky's legal professionals can maintain their personal well-being and professional effectiveness, ultimately serving the interests of justice and the broader community.

Lawyer Assistance Pro gram (KYLAP). She is a licensed attorney, a cer tified employee assistance professional and an adult peer support specialist. She is a member of the Kentucky Judicial

Commission on Mental Health. She is chair of the American Bar Association’s Commission on Lawyer Assistance Programs (COLAP); the former chair of the ABA/COLAP Diver sity, Equity & Inclusion Committee; and former member of the National Task Force on Lawyer Well-Being. Hourigan was awarded the KBA President’s Special Service Award by former KBA President Tom Kerrick for KYLAP’s ser vice to Kentucky’s legal community during the COVID-19 pandemic. She received the Dave Nee Foundation’s “Uncommon Counselor” Award for her work in suicide prevention in the legal profession and is the recipient of the Sulli van Medallion from the University of Kentucky. In 2024, Hourigan received the Chief Justice Special Service Award from Chief Justice of the Commonwealth Laurance B. VanMeter, ret.

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