Here is a link to a Courer-Jounal story that I find a little frustrating to read; not in the contents but in the implications prompted by the writer, in a rush for judgment and the obvious bite that it attempts to precipitate, regarding reported ethical complaints under investigation.
Just as a complaint is just one side of the story in a lawsuit; an ethics complaint is no different.
An investigation is nothing more than an investigation; one judge's order is nothing more than one lawyer's opinion; a Court of Appeals' decision is just three lawyers' opinions. There is no assurance that any one of them got it "right", else there would be no need for appellate review of any decisions.
Both lawyers who are presidents-elect of the respective bar associations in this story were and continue to be highly respected among their peers who elected them to these positions of responsibility and trust.
And the two investigations are neither related, complete nor conclusive. My personal preference would have been that Maria Fernandez would not have resigned pending the investigation, but sometimes the needs of the many are greater than the needs of the one (Spock said that; not me). Thus, I admire her professional and personal sacrifice for the Louisville Bar Association, but after reading the Court of Appeals' decision at the heart of the investigation, I believe there is more to the story and that her actions were not inappropriate but beneficial to the clients since there was a Kentucky estate and an an out-of-state trust at stake.
I also disagree with the characterization of that decision by the COA (but then again, that is just one lawyer's opinion) and believe the COA did not get it "right" on the law applied to the will and out-of-state trust. But, in any event, reasonable minds can differ on the law which is always being reviewed by lawyers, and always in a state of flux. What was clear once is not clear today. Remember when contributory negligence once was a complete bar to a claim???
However, a decision by Maria Fernandez to resign from the bar association office does not detract from Barbara Bonar's decision to stay in office as president-elect pending her investigation. Barbara's decision is equally laudatory and to be respected. In fact, it is also the right thing to do since the Kentucky Bar Association includes all members of the bar, and a pending investigation by that organization should not be given any more weight or credence until it is completed. Her courage in the face of a question of interpretation will benefit us all. And her courage to ride it out will serve as a guide to all that the presumption of no wrongdoing should exist until all the facts are in and the decision reached, officially.
Two presidents-elect, two bar associaions, and two different approaches with both being proper and correct. Neither decision was wrong.
Allegations are nothing more than allegations. Both Bonar and Fernandez have denied any wrongdoing.
I regret any angst this posting may cause either person, but to do nothing pending this investigation and the resultant press coverage with its implications is not the right thing either.
Kentucky Bar Association investigates two presidents-elect
For what it is worth, here is the digest of the COA decision at www.KyCases.com with a link to the full text of the decision.
HALE V. MOORE
PROBATE: Adversary proceedings (district vs. circuit court jurisdiction issues); Fees for executrix and attorney (same person)
2005-CA-001895
TO BE PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING WITH DIRECTION
PANEL: NICKELL PRESIDING; HOWARD, TAYLOR CONCUR
COUNTY: SHELBY
DATE RENDERED: 01/04/2008
This case involves the classic jurisdictional dispute between District and Circuit Courts. The Court of Appeals applied Lee v. Porter, 598 S.W.2d 465 (Ky. App. 1980), and held that once an adversary proceeding (an estate settlement suit) was filed in Circuit Court, that court alone had jurisdiction over the case. With that procedural question out of the way, the Court of Appeals addressed two substantive issues.
The Court first held that where the residuary estate passed to both charitable and non-charitable beneficiaries, the non-charitable beneficiaries were not spared the effect of the estate and inheritance taxes. The Court reached this holding by applying Kentucky law calling for apportionment of the tax burden in the absence of contrary language. However, the Court of Appeals' opinion was misguided in this holding. The Court applied Kentucky law because the Will was that of a Kentucky resident. The Will, however, included a residuary clause that funded a Trust, which was governed by Pennsylvania law. Pennsylvania law would have reached a different result on the apportionment issue, but the Court of Appeals ignored the distinction between the Will and the Trust and merged the two into an Estate, which it governed by Kentucky law.
The Court next held that the executrix's fee was too high. Again, this part of the opinion is troubling because the Court reached this holding by conflating the Will and the Trust. Although the executrix's fee was governed by KRS 395.150, the Trustee fee should not have been. At this point, the case has been remanded to the Circuit Court. But, the law of the case is that the executrix's fee is too high. It seems that it would be more appropriate for the executrix to have an opportunity to effect a clear allocation of the fee between the Will and the Trust (and actually some other entities that are involved) on remand. Hopefully, a Petition for Rehearing or a review by the Court of Appeals will clarify that issue so that the Circuit Court can meaningfully address the issues on remand.
Please note that this post was prepared Sunday morning, but I let it season a few days before posting.
