Bench & Bar March/April 2025

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vol. 89 no. 2 THIS ISSUE OF THE KENTUCKY BAR ASSOCIATION’S B&B-BENCH & BAR WAS PUBLISHED IN THE MONTH OF MARCH. 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 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

CONTENTS 2 President’s Page BY RHONDA JENNINGS BLACKBURN

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2025 ANNUAL CONVENTION OVERVIEW

12 Veteran Suicide: What’s Your Role Counselor? BY ROY BERWICK 16 Financial Difficulties for Veterans Overpaid BY BRAD HARRIS FEATURE: MILITARY LAW * 18 Understanding USERRA: The Uniform Services Employment and Reemployment Rights Act BY NICK HETMAN 20 Improving the Quality of Legal Services for Kentucky’s Veterans through Force Multiplication BY TAMARA REID-MCINTOSH, JD, PHD

KATHRYN D. WILLIAMS louisville MARK A. WINSOR lawrenceburg

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

COLUMNS

25 Northern Kentucky University Salmon P. Chase College of Law 28 University of Kentucky J. David Rosenberg College of Law 32 Law Practice Management BY STEPHEN EMBRY

24 Young Lawyers Division BY DONALD H. COMBS III Effective Legal Writing BY MARCIA M. ZIEGLER 26 University of Louisville Louis D. Brandeis School of Law 30

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

34 Lawyer Wellbeing BY DR. ERIC Y. DROGIN

36 Ethics Corner

BY SHELDON G. GILMAN

40 KBA Board of BAR NEWS

44 Kentucky Bar Foundation 42 Kentucky Lawyer 46 Continuing Legal Education DEPARTMENTS Assistance Program

Governors Minutes

51 Who, What, When and Where

* Comments and feedback about the feature articles may be sent directly to the Military and Veterans Law Committee at milvetlaw@kybar.org.

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Several inside graphics by ©istockphoto.com/JesiEbelhar

PRESIDENT'S PAGE

finding your Motivation

BY RHONDA JENNINGS BLACKBURN KBA PRESIDENT

A ny lawyer who tells you they have a 100% success rate has either never practiced law or is a liar. The practice of law is by its nature adver sarial. There has to be a winner and a loser. One of my favorite song lyrics is from a Mary Chapin Carpenter song which says, “sometimes you’re the windshield, some times you’re the bug.” In my long legal career, I have been the windshield many, many times but I’ve also been the bug more times than I can count. It took me years to be able to process the losses in a healthy way. In the end, I realized that all I can give my clients is my very best effort. If I believe I represented the client to the best of my ability, then I can sleep at night. Having said that, this job is stressful and it’s hard to find the motivation to give your best effort day in and day out know ing you might not succeed. Over the years, I’ve found that motivation is not a one size fits all concept. Much like a lawsuit, it’s very fact specific. I have come to realize that the places I find motivation fall into distinct categories. LOVE. Sometimes you meet a client, and an instant connection is developed. There’s no rhyme or reason why, you just like them. In those cases, the motivation is love. You care so much about the client that you will do anything to try to help them. Unfor tunately, I’ve found that this is the most

stressful client to have. You can’t help but worry more when you have such a relation ship with your client. But it can also be the representation from which you gain the most personal satisfaction. As I write this, I think of my favorite client of all time. My representation of him was over 15 years ago but this sweet gentleman has brought me candy every Christmas since then. He calls it his “retainer.” He has followed me to two subsequent employers and is the sweetest and most humble person I know. I feel such satisfaction knowing I made a difference in his life and am his friend to this day. MONEY. I’m sure there are some who would say that money is an inappropriate motivator, but I disagree. Obviously, you can’t love every client. Sometimes you don’t even like them. But you undertook to rep resent them, and you should do it to the best of your ability. Therefore, you must look for other motivation. Working hard to earn your living is as good as any other motivator. I have never wanted a dollar that I did not feel I earned. If my motivation to do my best work is to earn my pay, the result to the client is the same. PERSONAL INTEGRITY. Whether my client believes it or not, my own personal pride in my work is a huge motivator to work hard. I believe this comes from being the child of educators. Throughout school, it was drilled into me that quitting is not an option and if something is worth doing, it’s

worth doing right. There have been so many times when giving up seemed to be the eas iest option, but my own personal integrity refused to let me give in. When you don’t give up and dig in to work yourself out of a problem, there is no greater feeling of accomplishment. And if none of those motivators work to encourage best efforts… SPITE. We have all been there. The client is impossible to like. They actively put road blocks in your way while you attempt to help them. Or opposing counsel is bellig erent and unpleasant for no good reason. Do not underestimate spite as an excellent motivator. I would rather die than give in. When faced with that situation, I double my efforts to make sure there is no room to argue that I somehow failed to give my best. When opposing counsel tries to bully me, I prepare harder to counteract their practices. Some of my best work has been done out of spite. The end goal is to give the best representa tion possible and the means by which you find your motivation to do that is immate rial. The key is finding the motivating factor to give your best for that particular client in that particular case. I truly believe that every client I have represented has received the best legal work I am capable of and that has to be good enough.

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Don’t leave anything to chance.

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Join us in Lexington this June to reconnect with your calling and find out how you, your bar association and attorneys across Kentucky can be “ Of Service ” to the profession and the public!

Our event will be held June 5-6, 2025, at Central Bank Center (430 W. Vine Street) in downtown Lexington. Make plans to attend our two-day in-person event! However, if you are unable to join us in-person, don’t worry, we will continue to offer on-demand programming, as well. Review the ad on page 11 highlighting the difference between the two registrations.

Registration for both the IN-PERSON CONVENTION and the ON-DEMAND PROGRAM will open in April and can be accessed online at www.kybar.org/2025AC .

SEE YOU SOON! We are pleased to present attendees with high quality CLE programming, whether in-person or on-demand, and are proud of the slate of programming we’ll be bringing you this summer. Keep reading for an overview of our feature speakers and additional CLE sessions to be covered during our convention, as well as information on our time-honored events.

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SPOTLIGHT

JUNE 5

THURSDAY Earn up to 6 CLE credits, including 2 ethics credits.

DR. DEBRA AUSTIN is a nationally recognized expert in lawyer well-being and author of The Legal Brain: A Lawyer’s Guide to Well-being and Better Job Performance .

CAMILLE VASQUEZ specializes in high-profile litigation and complex legal disputes and is well known for representing Johnny Depp in the defamation case that he brought against his ex-wife, Amber Heard. FEATURE OTHER GREAT CLE TOPICS: Supreme Court Rules Hearing, Providing Law-Related Services, Kentucky’s Expungement Laws, Education Law, Unclaimed Property, Technology in the Courtroom, and more!

FRIDAY Earn up to 6 CLE credits, including 2 ethics credits JUNE 6

SPOTLIGHT

JIM HIGDON is the co-founder and chief communications officer of Cornbread Hemp. He is also the author of The Cornbread Mafia , a nonfiction account of his Kentucky hometown’s outlaw cannabis operation.

CREIGHTON WATERS serves as Chief Attorney, State Grand Jury Section for the Office of the South Carolina Attorney General. Most notably, he was the lead prosecutor in the Alex Murdaugh case featured in the Netflix series, Murdaugh Murders: A Southern Scandal . FEATURE

ON-DEMAND AVAILABLE MAY 1 – JUNE 30, 2025 ON-DEMAND TOPICS: Survival Guide for Tax Audits, Immigration Law, Hidden Assets, and more! Earn up to 6 hours of CLE credit, including 2 ethics credits.

OTHER GREAT CLE TOPICS: Navigating AI in Legal Practice, Jury Selection, Bankruptcy News, Ethical Considerations in Closed and Settled Cases, and Corporate Transparency Act Update, to name a few!

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WEDNESDAY JUNE 4

MEMORIAL SERVICE CHRIST CHURCH CATHEDRAL 166 MARKET STREET LEXINGTON, KY 3:00–4:00 pm

The Kentucky Bar Association will celebrate the lives and legacies of those KBA members who have passed since May 1, 2024, during its annual Memorial Service at Christ Church Cathedral. Members of the planning committee encourage attendees who are arriving in town just prior to the convention, and those who are situated locally, to participate in this beautiful, ecumenical service held in honor of our fellow Kentucky attorneys who have passed. The dignity of the event will be underscored by the Supreme Court of Kentucky dressed in their robes. Additional members of the judiciary have also been invited to participate. The service will feature various musical selections and will be led by representatives from different faiths. Family members of those being remembered will receive personal invitations, but all KBA members are encouraged to attend. To view the live service or have access to the recording at a later time, visit www.kybar.org/2025memorialservice .

THURSDAY JUNE 5 8:00–9:00 am

KICKOFF BREAKFAST THE WILDCAT WHISKEY CLUB

Don’t miss out on the opportunity to start the convention…and the day….off the right way! Stop by our Kickoff Breakfast and grab a bite to eat on your way to your first CLE session or relax with a cup of coffee as you meet up with colleagues from across the state. Either way, you won’t want to miss it.

PHOTOS BY TIM WEBB PHOTOGRAPHY

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BENCH & BAR / YLD JOINT RECEPTION THURSDAY JUNE 5 CONT'D. 5:00–6:15 pm

MAIN STREET LOBBY CENTRAL BANK CENTER

End the day at the Bench & Bar and Young Lawyers Division Joint reception. After a long day of CLE sessions, stop by the Central Bank Center Main Street Lobby and enjoy refreshments and light

hors d’oeuvres. Talk with members of the judiciary and fellow members of the bar during this time-honored event.

6:30 pm

ANNUAL BANQUET

YOUNG LAWYERS DIVISION LUNCHEON REGENCY BALLROOM HYATT REGENCY HOTEL $ 30 PER PERSON 12:00–1:30 pm The Young Lawyers Division wishes to extend an invitation to all KBA members and guests to attend their Annual Luncheon. The division will honor recipients of the Outstanding Young Lawyer Award, Service to Young Lawyers Award, and Young Lawyer Service to Community Award. In addition to these annual awards, the winners of this year’s Legal Food Frenzy competition will also be recognized.

Join us as we celebrate Kentucky attorneys for their good work as we honor the Distinguished Lawyer and Distinguished Judge and present a variety of other awards including the Chief Justice's Special Service Award. We will also swear in the 2025-2026 KBA Officers and Board of Governors. Take this opportunity to dine with colleagues and reminisce on what it means to be a lawyer. PATTERSON BALLROOM LOWER LEVEL, HYATT REGENCY HOTEL $ 65 PER PERSON

FRIDAY JUNE 6

12:00-1:30 pm

KBF LUNCHEON THOROUGHBRED BALLROOM HYATT REGENCY HOTEL $ 25 PER PERSON The Kentucky Bar Foundation (KBF) luncheon is held annually to award grants to the various nonprofit organizations that are supported by the KBF and to also honor the KBF's newest Fellows and major gift donors. Anyone is welcome to attend.

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PUBLIC SERVICE PROJECT support, advocacy, medical evaluations, and mental health services at a single child-friendly location. Children’s Advocacy Centers cur rently serve approximately 7,500 children per year. These children come from all corners of the Commonwealth, from our major cities to our most rural communities. Each year, the Kentucky Bar Association’s (KBA) Annual Convention Planning Committee identifies a public service project aimed at improving the lives of Kentuckians, with an emphasis often placed on those living within the host city. This year, the committee has selected the Children’s Advocacy Centers of Kentucky.

As a membership organization, Children's Advocacy Centers of Kentucky employs a staff of experienced professionals dedicated to serving the needs of its member centers. Services include advo cacy, collaboration, funding, networking, evaluation and assessment, training, technical assistance, and more. Please join us for an interactive session on the professional role of counsel for children in Kentucky during the in-person portion of the annual convention. “Kids in Court: Role of Counsel When Rep resenting Young People in Delinquency Court” will be presented on Friday, June 6, 2025, from 11:30 a.m. – 12:30 p.m., by Alana Meyer. Don’t miss this session!

Serving every geographic area in the Commonwealth, Kentucky's 15 Children's Advocacy Centers (CACs) provide direct forensic and supportive services to children and non-offending caregivers impacted by child abuse. CACs provide forensic interviews, victim

For more information about Children’s Advocacy Centers of Ken tucky, visit their website at https://cackentucky.org/.

Also, don’t forget to donate on your KBA Annual Convention registration for this year’s public service project, as KBA President Rhonda Jennings Blackburn has pledged to match up to $2,000 of your donations!

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CENTRAL BANK CENTER

W. MAIN ST.

Cancellations must be made directly with the hotel at least 48 hours before the reserved date. All reservations must be guaranteed by an individual credit card. 401 W. High Street, Lexington Single/Double: $169 per night To secure a room online, visit: https://www.hyatt.com/en-US/group-booking/ LEXRL/G-BA25 Call in reservations 800.233.1234 and ask for Code G-BA25 HOTEL RESERVATION INFORMATION The Kentucky Bar Association has reserved a block of rooms with special rates for convention attendees and guests at the Hyatt Regency Hotel. To receive the special group rate, rooms must be booked directly with the hotel using the information below by Monday, May 12, 2025. After this date, room reservations will be made on a rate and space availability basis. There are a limited number of hotel rooms in the block, so we encourage you to reserve your room early. Hyatt Regency Hotel

W. VINE ST.

PARKING ENTER AT GATE 2

HYATT

S. BROADWAY

W. HIGH ST.

W. VINE ST.

S. MILL ST.

S. BROADWAY

REGISTRATION CENTER Upon arrival, all registrants should check in at the KBA Registration Desk located at the High Street Lobby at Central Bank Center. Registration Desk Hours Parking is complimentary ONLY for guests staying at the Hyatt. Guest tickets will be validated at the hotel front desk. Pull a ticket to enter, stamp at the front desk, and scan the ticket to leave. PARKING Central Bank Center Parking - Please park at Gate 2 and enter through the west end doors from High Street. There will be signs leading to the registration desk.

Thursday, June 5, 7:00 am - 5:00 pm Friday, June 6, 8:00 am - 2:30 pm

planning committee

cle program committee

Amelia M. Adams Rhonda Jennings Blackburn

Judge Sara W. Combs W. Mitchell Hall, Jr. D’lorah L. Hughes Zoe Jessie Guion L. Johnstone Todd P. Kennedy LaToi D. Mayo Damon L. Preston

D’lorah L. Hughes Guion L. Johnstone Damon L. Preston

Ryan F. Quarles Brittany N. Riley Katie Shepherd

Amelia M. Adams Dana Arnold Rhonda Jennings Blackburn Catherine E. Bouvier Kyle R. Bunnell Christine L. Stanley planning committee chai r

Donald H. Combs III cle program chair

Ryan F. Quarles Vincent J. Riggs Brittany N. Riley Katie Shepherd Judge Denotra Spruill-Gunther Alex Kerns Torres Judge Larry E. Thompson Judge Lucy A. VanMeter

Christine L. Stanley Alex Kerns Torres

Thank you to these committee members for their time and efforts in this year's convention!

Alexander B. Clay Miranda D. Click Donald H. Combs III Elizabeth A. Combs

Dustin R. Williams Langdon R. Worley

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FEATURE: MILITARY LAW

BY ROY BERWICK Veteran Suicide: WHAT’S YOUR ROLE COUNSELOR? Phone rings. “Hello, this is Roy Berwick, Legal Aid, may I help you?” VET: “Hey, Mr. Berwick, this Chris Macy, and I am down the street from your office right in front of CVS on Muham mad Ali and Fourth Street.” BERWICK: “Hey, Chris, it is raining cats and dogs come down to the office and get out of the rain.” VET: “No, Mr. Berwick, I don’t think so. I am waiting for the traffic to pick up and the light to turn green and then I am going to push myself in my wheelchair into oncoming traffic. I have had it. Done.” BERWICK: “Wow, wait, Chris, I will be right there. Don’t do anything until you see me, ok? Phone goes dead. OPERATOR: “This is 911 what is your emergency?” BERWICK: My name is Roy Berwick, Legal Aid, I have a client, named Chris, who is threatening to push himself out into oncoming traffic in the next few minutes.” OPERATOR: “Where is he and can you give a description?” BERWICK: He is at Fourth and Muhammad Ali in front of the CVS sitting in a wheelchair. Skinny guy with glasses.” OPERATOR: “Officers dispatched. May I get your infor mation, please?”

T his is a true event. The Louisville Metro Police got there in just a few minutes, recognized my vet, and stopped him from carrying out his plan. They took him to The University of Louisville Hospital where he was admitted for a 72-hour observa tion. The stars lined up for Chris (not the vet’s real name) and he was saved. He is still alive today and doing a lot better. He is still my client in a VA claim for benefits. OPENING NOTES This article stems from a Kentucky Bar Association presentation made during the May 2024 Kentucky Bar Annual Convention, in Covington, Ky. The presentation focused on veteran suicides and what and how a member should respond if confronted with a vet eran’s actual or threatened suicide. Note, while the topic is veteran suicide, suicide rates are not only high for veterans but for lawyers as well, with the rate for both groups higher than the general pop ulation. I emphasize veterans a lot in this article but as a member

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Kentucky has about 250,000 veterans statewide or 7.2 percent of the population ages 18 and older. 2 There are at least 100 veterans residing in each of the Commonwealth’s 120 counties. 3 It is a safe bet that many practitioners already have or will have one or more veterans as clients. For purpose of state and federal benefits, the status of veteran is defined by law and there are several categories, but for our purposes a veteran is one if they have identified to you that they are a veteran. If you become interested in representing veterans before the Bureau of Veteran Affairs for purposes of ben efits, contact me, and I will be more than happy to provide chapter and verse on the classification under the various laws. 4 This article focuses on individuals who consider themselves veterans who face the risk of suicide. 5 Why the risk? There are a number of multifac eted stressors that veterans face:

HOMELESSNESS HUNGER

MENTAL HEALTH SOCIAL SERVICE NEEDS PHYSICAL ISSUES POST MILITARY SERVICE

DOMESTIC ISSUES SUBSTANCE ABUSE LEGAL ISSUES (CRIMINAL AND CIVIL)

SUICIDAL OR NOT? If a client discloses an intent to commit suicide, a lawyer’s first obli gation should be the same as that of any sensitive and understanding individual. That is, the lawyer should show appropriate concern, encourage the client to seek help, and the lawyer should counsel the client against suicide. A client who threatens suicide presents a lawyer with a difficult dilemma in trying “to balance the law’s longstanding policies con cerning the protection of human life against customary professional standards involving the preservation of client confidences and secrets.” 6 Generally, a lawyer cannot disclose actions/statements relayed to them by clients unless the client authorizes disclosure. However, the lawyer may, and should, take appropriate action to keep the client from committing suicide, and for this purpose, the lawyer may be required to reveal the client’s suicidal intent to others. If the client does not consent or agree to the disclosure after consul tation, or it is either impossible or inadvisable to consult with the client about disclosure given the situation, the question becomes whether the Rules of Professional Conduct mandate or permit dis closure without the client’s consent. 7 In Kentucky, the Supreme Court has provided guidance in the form of the following rules: KY. SUP. CT. 3.130 (1.6 AND 1.14) R.1.6 (b) (1): A lawyer shall not disclose information relating to the representation of a client unless … to prevent certain death or substantial bodily harm:…

of the practicing bar you should be aware that a suicide gesture, attempt, or threat can occur in your office at any time. This article is an effort to give you some facts, practical knowledge, and ethical considerations if the suicide poser is a client. VETERAN SUICIDE Veteran suicides average about 17 a day per Veteran Affairs. 1 This is over 8,000 veteran deaths a year which are attributed to suicide. The problem has been recognized as so serious that Congress passed The Staff Sergeant Parker Gordon Fox Suicide Prevention Program as a community-based outreach and suicide prevention program designed to reduce suicide risk and improve well-being for eligible veterans and their families. The program itself is named in honor of Staff Sergeant Gordon Parker Fox, a 25-year-old soldier, noted for his kindness to others, who died by suicide on July 21, 2020. Much local outreach is funded in whole or part by this program.

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FEATURE: MILITARY LAW

R.1.14 (b): When a lawyer believes… that… a substantial physical, --- harm [suicide] unless action is taken … to protect the client … 8 These rules provide a framework for navigating these challenging situations. RULE 1.6(b)(1): CONFIDENTIALITY AND ITS EXCEPTIONS R. 1.6(b)(1) establishes the foundational principle of client con fidentiality. Ordinarily, attorneys are prohibited from disclosing information related to the representation of a client. However, this rule contains an exception: • Disclosure is permitted if it is necessary to prevent cer tain death or substantial bodily harm . In the context of a suicidal client, this exception empowers attorneys to act if they believe disclosure is necessary to save a client’s life. The rule acknowledges that the protection of life outweighs the strict duty of confidentiality in such dire circumstances. For example, if a veteran client explicitly states an intent to harm themselves, the attorney may alert appropriate authorities or a trusted individual to intervene, even without the client’s consent. PRACTICAL APPLICATION 1. Evaluate the Risk : Determine whether the client’s

disclosure reflects a serious and imminent threat of harm. 2. Minimal Disclosure : Only disclose as much information as is necessary to prevent harm. For instance, provide law enforcement or mental health professionals with the location and nature of the threat but avoid extraneous details about the client’s case. RULE 1.14(b): CLIENTS WITH DIMINISHED CAPACITY R. 1.14(b) specifically addresses situations where a client’s ability to make rational decisions is impaired. When dealing with a client that has expressed an immediate intent to self-harm: • When a lawyer reasonably believes that a client is at risk of substantial physical harm (such as suicide), they must take necessary protective actions to safeguard the client. This rule recognizes that attorneys may need to act beyond tradi tional representation when their client’s mental state renders them vulnerable. Importantly, this can be understood to cover situations where suicidal ideation compromises the client’s ability to protect themselves.

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PROTECTIVE ACTIONS UNDER RULE 1.14(b):

LAST COMMENTS AND SUGGESTIONS: • Read Ky. R. Sup. Ct. 3.130 (1.6) (b)(1) and Ky. R. Sup. Ct. (1.14)(b). • Affirm your understanding and contact the Ethics Hotline for your area. • Talk with other professionals, specifically mental health providers. • Talk with your own physician to get his or her as sessment of the situation. • Keep the National Lifeline telephone number close to hand: 988. • Have an understanding in your office regarding veteran suicide prevention. • CARE.

1. Engage Support Systems : Contact family members, mental health professionals, or other support networks if doing so aligns with the client’s best interests. 2. Emergency Intervention : In cases of immediate danger, contacting emergency services ( e.g. , dialing 911) is a neces sary step, as in the case of a veteran threatening self-harm in public. 3. Respect for Autonomy : Strive to involve the client in the decision-making process when possible, explaining why protective measures are being taken. ETHICAL BALANCE: CONFIDENTIALITY VS. PROTECTION Together, Rules 1.6(b)(1) and 1.14(b) offer a roadmap for attorneys to act decisively in crises while maintaining ethical integrity: • PRIORITIZE HUMAN LIFE: When a client’s statements or behaviors indicate a clear and present risk of suicide, the attorney’s duty to protect life overrides strict confiden tiality. • EXERCISE PROFESSIONAL JUDGMENT: Deter mine the least intrusive means of intervention while effec tively addressing the threat. • DOCUMENT DECISIONS: Keep detailed records of the threat, the steps taken, and the rationale behind those actions to ensure transparency and accountability. In short, you are to take action to protect your client . When assisting a veteran client who may be suicidal, an attorney must carefully evaluate the level of risk by following a structured approach. Begin by distinguishing between ideation and intent—does the client merely express thoughts of suicide, or is there a genuine intent to act? If intent is present, assess whether there is an immediate risk by directly asking the client. If the risk is immediate, determine whether the veteran has a specific plan for self-harm. Finally, if a plan exists, inquire whether the client has the means to carry it out. If the answers confirm intent, immediacy, a plan, and access to means, the attorney must take decisive action to intervene and ensure the client’s safety. Counsel the veteran against suicide and encourage the individual to get help from family, support groups, or professional services. Note that many veterans already have counselors, therapists, psy chologists, and psychiatrists and the veteran should be encouraged to reach out to one or more of these resources. If possible, con sult a mental health professional to help evaluate the credibility of the suicide threat, keeping in mind the restriction of making only necessary minimal disclosure to obtain opinion. Remember the National Suicide Prevention Lifeline: 988. If you believe self-harm is immediate do not hesitate to contact Emergency services. It is neither a time to second guess yourself nor to be reflective. ACT.

ABOUT THE AUTHOR ROY BERWICK is a retired sol dier and a senior veteran’s attorney with Legal Aid in Louisville. He was admitted to practice law in Nebraska in 1980 and Kentucky in 1991. After retiring from the U.S. Army in 1993, he pursued private educa tion before returning to law in 2017. Berwick

graduated from Creighton University’s College of Law in 1980 and has been a member of the KBA’s Military and Veteran’s Law Committee since 2018.

ENDNOTES 1 Office of Mental Health and Suicide Prevention . (2022, September). 2022 Na tional Veteran Suicide Prevention Annual Report. www.mentalhealth.va.gov. https://www.mentalhealth.va.gov/docs/data-sheets/2022/2022-National-Vet eran-Suicide-Prevention-Annual-Report-FINAL-508.pdf 2 Schaffer, Katherine, “The changing face of America’s veteran population,” Pew Research Center, November 8, 2023, https://www.pewresearch.org/short reads/2023/11/08/the-changing-face-of-americas-veteran-population/. See also Greg Cancelada, “Sizing Up the Ranks of America’s Veterans,” Open Vault Blog-Federal Reserve Bank of St. Louis, November 08, 2023, https://www.st louisfed.org/open-vault/2023/november/sizing-up-ranks-america-veterans#. 3 Housing Assistance Council, Veterans Data Central’s Kentucky Data Sheet, https://veteransdata.info/states/2210000/Kentucky.pdf. 4 38 U.S.C. 101 (10). 5 Much indebted to Dr. Tamara Reid-McIntosh, J.D., Ph.D., for her superb pre sentation before the Kentucky Bar Convention entitled, Maximizing Legal Resources Available to Veterans in the Commonwealth Of Kentucky, 10 May 2024, from which the numbers of veterans have been taken. 6 Level, A Client Threatens Suicide-What Can You Do? NC State Bar Journal, Spring 2019, vol. 24 number 1. Used, here, with permission of the author. 7 Id. 8 KY. R. SUP.CT. 3.130 (1.6 and 1.14).

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FEATURE: MILITARY LAW

FINANCIAL DIFFICULTIES FOR VETERANS OVERPAID BY BRAD HARRIS

T hrough several programs, the Veterans Administration (VA) provides monthly payments to veterans and other beneficia ries. Changes in eligibility, antiquated VA technology, and internal communication errors between IT systems lead to many overpayments to veterans, often through no fault of their own. Because there is no limit on how much the VA can ask a veteran to repay, and no limit on how far back it can go to collect the debt, these sums can become enormous. Many times, the VA withholds entire checks from veterans who may be living on fixed incomes, potentially leading to housing instability, food insecurity, and dif ficulty paying medical bills. A veteran’s obligation to repay the overpayment is not affected by the fact that the balance due was caused not by the veteran but by VA administrative error. This lack of defense to the government’s claim is very frustrating to those who were unaware of the responsibility to refund the government. In addition to VA error, an overpayment problem develops when the veteran fails to report changes in marital status, employment, or dependents, and to follow other complex rules of required VA benefit regulations. There are limited options for repayment plans. The stress and anx iety of managing a large debt and the potential for further financial hardship can significantly impact a veteran's mental health. EXAMPLE OF THE PROBLEM One client had an improper debt collected in full. It took 10 years for the VA to acknowledge their error, which cost the client over $7,800 in benefits. Before the VA fixed the error, the client's 100 percent disability was awarded, but the error stopped that from being paid. Then the computer system increased the original debt to the 100 percent amount, creating an additional $14,000 in debt. WHAT CAN VETERANS DO IF FACING AN OVERPAYMENT? VA law provides that recovery of overpayment of any benefits shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver, and recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. § 1.963 (a).

The standard “Equity and Good Conscience” will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the government’s rights. In making this determination, consideration will be given to the following elements, which are not intended to be all-inclusive: (1) Fault of the debtor. Where actions of the debtor contribute to the creation of the debt. (2) Balancing faults. The VA will weigh the veteran’s and VA’s degree of fault in causing the overpayment. (3) Undue hardship. Whether collection would deprive the veteran or family of basic necessities. (4) Defeat the purpose. The VA will consider whether withholding benefits or recovery would nullify the objective for which benefits were intended. For example, it might defeat the purpose of the VA Pension program if collecting the overpayment would prevent the veteran from paying for basic necessities. (5) Unjust enrichment. Failure to make restitution would result in unfair gain to the debtor. (6) Changing position to one’s detriment. Reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. See 38 U.S.C. § 5302; 38 C.F.R. § 1.965 (a). A veteran facing an overpayment problem can dispute the overpay ment by contesting it, and requesting a review. Although veterans are not required to hire an attorney, a legal professional or veterans service organization can help the veteran understand their rights and options. The Overpayment Accountability Act of 2021 aims to address these issues by improving VA IT systems to reduce the likelihood of erro neous overpayments due to poor communication between systems. It also seeks to provide better credit protection for veterans who have received overpayments. Here are summaries of several overpayment cases that may be help ful to attorneys representing veterans with overpayment issues: DOCKET NO. 09-30 977 CITATION NR: 1530375 DECISION DATE: 7/16/15 $6,482.50 due to failure to report veteran’s incarceration for a felony

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lasting over 60 days. The veteran was informed of the requirement to report such changes, yet he continued to accept full benefits despite being ineligible. The Board determined that the overpayment was valid, and the veteran was solely at fault for not notifying the VA of his incarceration status. DOCKET NO. 11-21 248 CITATION NR: 1638173 DECISION DATE: 9/28/16 Overpayment of VA disability compensation in the amount of $9,601, resulting from the removal of the former spouse as a depen dent, is valid. The veteran was significantly at fault for not promptly notifying the VA of her divorce, despite receiving multiple notifica tions emphasizing her responsibility to report changes in dependent status. Although the veteran claimed she submitted the necessary forms to update her dependent status, the evidence indicates these submissions occurred long after her divorce and were not properly documented in the claims file, leading the Board to find her testi mony not credible. DOCKET NO. 00-12 854 CITATION NR: 0201247 DECISION DATE: 2/6/02 The veteran's spouse filed a claim for apportionment of the veteran's VA disability compensation in order to support their children. She said the veteran was living with another woman. He did not respond, so she won the request for apportionment. VA's fault in mistakenly transferring any payment to his bank account does not relieve him of his responsibility to promptly report the erroneous receipt of excessive VA benefits and take steps to prevent the overpayment. DOCKET NO. 13-00 468A CITATION NR: 1508766 DECISION DATE: 2/27/15 Veteran requested waiver of recovery of an overpayment of non-ser vice-connected pension benefits in the amount of $6,878 from the Office of Personnel Management (the veteran had become a federal employee and received pension benefits from that job). He argued that VA should honor his bankruptcy proceedings to discharge his VA debt. Here, the decision considered that the 10th Circuit Court explained that "recoupment" was an equitable doctrine in bankruptcy that allowed one party to a transaction to withhold funds due to another party, when the debts arise out of the same transaction. A debt caused by VA overpayment is not a debt that can be discharged under bankruptcy; rather, it is an obligation that VA can recoup after bankruptcy. See In re Boyd , 223 B.R. 536 (Banker. E.D. Ark. 1998) (finding that a mandate that readjustment pay be recouped from disability benefits does not constitute a debt to the United States and that VA was entitled to recoup readjustment pay despite that veteran's bankruptcy discharge). DOCKET NO. 13-28 564 CITATION NR: 1711189 DECISION DATE: 4/7/17 The VA Pension Management Center had reduced the veteran's pension benefits $14,471 effective April 1, 2003, due to his receipt of Social Security Administration income. The veteran's request for waiver of overpayment was received on January 25, 2013, more than

180 days after notification of the overpayment and the 180-day time limit for filing a request for waiver of overpayment. His VA pension was based on countable income, and therefore, this increase in income due to his SSA benefits affected his entitlement to VA pension benefits. Specifically, his pension was reduced, which resulted in an overpayment of benefits which he had been paid. Entitlement to waiver of recovery of overpayment was denied. DOCKET NO. 19-27 872 CITATION NR: 22064008 DECISION DATE: 11/16/22 The veteran was married when he applied for Veterans Adminis tration disability benefits. He divorced and then was approved for the disability benefits. He failed to tell the VA until five years later. The decision not to add the veteran's former spouse for the period during which they were married was proper; the appeal is denied. The VA had informed him "You must tell us immediately if there is any change in the number or status of your dependents. Fail ure to tell VA immediately of a dependency change will result in an overpayment which must be repaid." A VA Form 21-8764 was provided at that time, which explained the responsibilities of the veteran in this regard. DOCKET NO. 13-16 184 CITATION NR: 21020822 DECISION DATE: 4/8/21 The veteran was at fault in the debt’s creation as he failed to notify VA of his divorce and remarriage for a period of approximately 16 years. The recovery of the VA spousal dependency benefits would nullify the objective for which the benefits were intended for the period after January 1991, as he remarried R.M. in December 1990, fol lowing his divorce from G.L. that same month. CONCLUSION Extreme patience is needed to work through VA overpayment prob lems. The fact that the veteran is right, and the VA is wrong doesn’t help much. If the veteran requests a waiver, the veteran should address each of the elements the VA will consider to determine if “reasonableness and moderation” are needed in the veteran’s case.

ABOUT THE AUTHOR BRAD HARRIS is an attorney with the Harris Federal Law Firm in Lexington. He is a member of the Texas, Kentucky, and Washington D.C. Bar associations. He is a member of the KBA Military and Veterans Law Committee, the Metropolitan Washington Employment Lawyers Association,

the National Employment Lawyers Association, the Trial Lawyers Association of Metropolitan Washington D.C. the National Orga nization of Veterans Advocates, the Kentucky Justice Association, and on the Board of Directors of the national Workers Injury Law Group. Harris can be reached at (859) 321-0200 or via email at brad@harrisfederal.com.

17 bench & bar

FEATURE: MILITARY LAW

USERRA UNDERSTANDING The Uniform Services Employment and Reemployment Rights Act 38 U.S.C. 4301–4335 BY NICK HETMAN

A s the recently elected Commander of the James P. Yates American Legion Post 9, Owensboro, I am aware of a number of contacts made to our Service Officer regarding what rights a veteran has concerning employ ment discrimination resulting from their service. Even in 2024, returning veterans are still fighting—this time for fairness in reemployment. SHORT HISTORY Some of you may be unaware that job discrimination still exists in certain situ ations. In an effort to protect civilian job rights and benefits for veterans, in 1994, Congress passed USERRA, a federal law that not only protects military service members and veterans (members of the Armed Forces, Reserves, National Guard, and other uniformed services, including the National Disaster Medical System and the Commissioned Corps of the Public Health Service) from employment discrimination on the basis of their service, but also allows them to regain their civilian jobs following a period of service.

Prior to the enactment of USERRA, there was a long history of legislation protecting those who served in times of armed con flict. Initially, such legislation was passed primarily to protect those who were drafted to return to their pre-service jobs at the end of hostilities. In 1946, the United States Supreme Court held in Fishgold v. Sullivan Drydock , that such legislation allowed the reemployment of an employee drafted to serve. 328 U.S. 275, 284 (1946). As another example of such efforts, during the Cold War era, the Veterans’ Reemploy ment Rights Act (“VRRA”) was passed to protect reservists against reemployment discrimination caused by military service. Even with the long history of legislation passed to protect Veterans’ rights, dis crimination continued to raise its ugly head. In Monroe v. Standard Oil Co. , the United States Supreme Court addressed the required standard of proof necessary to be successful in bringing such matters and held that in order for a VRRA cases to pro ceed, the reservist must show the employer’s discriminatory action against the reservist was “motivated solely by reserve status.” 452 U.S. 549, 551, 559-560 (1981). As one might guess, that was an almost impossible stan dard to overcome.

As a result of that holding, USERRA was enacted and the standard changed to pro vide that the employee must now show that their military service was a “sub stantial” or “motivating factor” in the employer’s adverse employment action. In short, USERRA provides that a returning employee has the right to any advantage of employment that the veteran would have received (such as health insurance, retirement benefits, and seniority) had the veteran not been absent due to mili tary service. This would include prompt reemployment upon return from duty, seniority benefits that would have accrued during the veteran's absence, such as grade increases, rate of leave accrual, accrued time on probationary period, career tenure, flexible work schedules, location of employ ment, etc. It is important to note that although employers cannot discriminate against the service member, neither are they generally required to give preferential treatment to that service member. In fact, if a returning service member does not request reemploy ment in a timely manner, the employee may be disciplined in a manner consis tent with the way the employer normally

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disciplines other workers who are absent without leave or authorization for a similar period of time. Further, it is permissible for an employer to contact that service member’s military commander to explain the difficulties caused by the employee’s military service and to request changes to make that service less burdensome. However, the military is NOT required to agree to those requests.

This brief article should be enough to steer the practi tioner to the proper code in the event of encountering a military servicemember as a client.

ABOUT THE AUTHOR

As a proud vet eran of the United States Navy, NICK HETMAN is currently the Commander of the

James L. Yates Post 9 of the American Legion Owensboro, Ky. A graduate of the University of Tennessee School of Law in 1977, he served for 38 years as senior attorney for the interstate natural gas transmission companies of Texas Gas Transmission Corporation and South ern Star Central Gas Pipeline, both located in Owensboro. Following retirement in 2015, in 2016, he entered private practice with the firm of Stevenson & Tierney in Owensboro. WEBSITES REVIEWED FOR ASSISTANCE WITH PREPARING THE ARTICLE. 1. U.S. Department of Labor--Veterans Employ ment and Training Service--Your Rights: https://www.dol.gov/agencies/vets/programs/ userra 2. U.S. Office of Special Counsel--USERRA Over view: https://osc.gov/Services/Pages/USERRA. aspx 3. USERRA: https://www.law.cornell.edu/wex/us erra_(the_uniformed_services_employment_ and_reemployment_rights_act) 4. USERRA Law: https://www.servicememberlaw. com/userra-law 5. 38 U.S. Code Section 4311 6. Military Employment Rights: https://legalaidat work.org/

USE OF USERRA It is important to note that USERRA applies to both public AND private employees. In the event of a Complaint being filed, the Office of Special Counsel, in conjunction with the Department of Labor, Veterans Employment & Training Service, inves tigates and enforces USERRA claims involving federal government employers. As concerns private employers as well as state and local government, the Department of Labor and the Department of Justice handle such claims. USERRA APPLIES NOT ONLY TO RETURNING SERVICE MEMBERS, BUT TO THOSE WHO: a. Are not considered for a job because that service member may have a military obligation on the day he/she is to start work; b. Are not being considered for a job because some of that member’s Reserve duties conflict with the company’s normal working hours; c. Are not being considered for a In order to avail themselves of the rights provided by USERRA, the employee has certain obligations, one of which is to pro vide advance written or verbal notice of any upcoming military service obligation and to notify the employer of his/her intent to return to employment (time frames vary according to length of time of service), and to provide a DD 214, and orders to verify length and character of service. Upon receipt of such information, the employer must approve requests for absence due to military service (38 USC4316(d)) and place the employee on leave without pay status for the duration of the military service, unless the employee requests other job because the service member may be required to perform extended periods of military ser vice (deployment overseas).

types of paid leave in conjunction with the absence period. However, employers may not have to reemploy a service member under the following scenarios: 1. Changes in the employer’s cir cumstances make reemployment impossible (example: going out of business); 2. The original employment was only temporary at its inception; 3. The service member sustained an injury that would create an “undue hardship” on the employer (There must be reasonable effort made to accommodate that service member. There are, of course, certain accommodations that are impossible, unreasonable, or use a prohibitive amount of resources); 4. Unfavorable discharge; 5. The service member exceeded the cumulative five-year limit of total service (with certain exceptions).

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FEATURE: MILITARY LAW

BY TAMARA REID-MCINTOSH, JD, PHD FOR KENTUCKY’S VETERANS THROUGH FORCE MULTIPLICATION IMPROVING THE QUALITY OF LEGAL SERVICES

I have been a Ken tucky attorney and university professor for approximately 20 years. Before my path to law school had fully mate rialized however, I became a Persian Gulf Era disabled combat

of veterans’ ability to hire attorneys, but rather a question of whether attorneys who are hired understand the unique and often traumatic circumstances faced by military service members, veterans, and their fam ilies, which precipitate the need for legal services in the first instance. The Commonwealth’s Department of Veterans Affairs has a statutory mandate, “to assist veterans and their families and dependents in the presentation, proof, and establishment of all claims, privileges, rights, and other benefits which they may have under federal, state, or local laws, and to cooperate with all national, state, and local government and private agencies securing services or any benefits to veterans, their families, and dependents.” 1 Although KRS 40.310 does not overtly encompass the provision of competent legal support in civil

or criminal matters, legal guidance is often the conduit that affords transitioning mili tary members, veterans, and their families the ability to effectively procure the rights and privileges that their honorable military service affords them at the state and federal levels. Since joining OVLS, I have been inundated with inquiries from veterans, residing throughout the Commonwealth, seeking legal assistance—with civil matters, pre dominantly—that once addressed, would advance or improve the quality of their lives. As there are at least 100 veterans residing in each of the Commonwealth’s 120 counties, I had to begin by determining whether each county offered competent legal services to veterans. 2

veteran after honorably serving as an Airman in the United States Air Force. It was the combination of military service and a law school education that set me on the trajectory of gaining the most important lesson of my personal and professional life: leveraging servant leadership to improve legal services for Kentucky’s veterans and their families. I have been privileged to interact with mili tary service members and veterans in every facet of my legal career. However, it was not until I began practicing law in the military and veteran sphere—after a post-COVID19 career shift—that I found my calling to con tinue to serve the Commonwealth and the nation by working to effectuate a notable change in the lives of the veterans and their families. After spending a year serving as associ ate counsel for the U.S. Department of Veterans Affairs and another two years serving as legal counsel for the Office of Veteran Legal Services (OVLS) within the Commonwealth’s Department of Veterans Affairs, I realized that the need for qual ity legal services for veterans—beyond the defense of disability benefit claims before the USVA’s Board of Veterans Appeals (BVA) or the U.S. Court of Appeals for Vet erans Claims (CAVC)—is not a question

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