BARRY BERTRAM, ETC. V. KENTUCKY BAR ASSOCIATION COURT
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AMENDED : JUNE 9, 2005
AMENDED : JUNE 1, 2005
TO BE PUBLISHED
,*ixprmP (gourf of ~rrtfurhg
2004-SC-000305-KB
R. DAVID STENGEL,
COMMONWEALTH'S ATTORNEY,
30th JUDICIAL DISTRICT, ET. AL.
V
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
MOVANT
2004-SC-000336-KB
KENTUCKY MEDICAL ASSOCIATION
V
RESPONDENT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
r 1OVANT
2004-SC-000332-KB
RICHARD BOLING,
COMMONWEALTH'S ATTORNEY 3rd
JUDCIAL DISTRICT
V
.1
13ACT S .5 '/ -o S 6" C''/,t.d 9e-
RESPONDENT
2004-SC-000347-KB
RAYMOND M. LARSON,
COMMONWEALTH'S ATTORNEY
22nd JUDICIAL DISTRICT
IN SUPREME COURT
MOVANT
KENTUCKY BAR ASSOCIATION
and
2004-SC-000357-KB
IRV MAZE, IN HIS OFFICIAL
CAPACITY AS JEFFERSON COUNTY
ATTORNEY
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000350-KB
KENTON R. SMITH,
COMMONWEALTH'S ATTORNEY 46th
JUDICIAL DISTRICT
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000349-KB
GEORGE W. MOORE,
COMMONWEALTH'S ATTORNEY 21 st
JUDICIAL DISTRICT
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
RESPONDENT
2004-SC-000346-KB
ROY K. SNELL, COMMONWEALTH'S
ATTORNEY 12th JUDICIAL DISTRICT
IN SUPREME COURT
MOVANT
KENTUCKY BAR ASSOCIATION
and
2004-SC-000339-KB
BARRY BERTRAM,
COMMONWEALTH'S ATTORNEY 11th
JUDICIAL DISTRICT
V.
RESPONDENT
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
On or about, April 15, 2004, Movants, the Honorable R. David Stengel
(STENGEL), Richard Boling (BOLING), Barry Bertram (BERTRAM), Roy K. Snell
(SNELL), Raymond M . Larson (LARSON), George Moore (MOORE), Kenton R.
Smith (SMITH), Irv Maze (MAZE) (seven Commonwealths Attorneys and one
County Attorney) and the Kentucky Medical Association (KMA), filed motions
under SCR 3.530(5) for review of Ethics Opinion E-423 (OPINION) adopted by
the Kentucky Bar Association (KBA) Board of Governors in January 2004 and
published in the March 2004 issue of the Kentucky Bench & Bar. Opinion E-423
addresses the use of subpoenas in criminal proceedings, including Grand Jury
proceedings, under RCr 5 .06 and 7.02. The Opinion was promulgated prior to
our January 2005 amendment of RCr 5.06, which added the statement that "RCr
7.02 shall apply to Grand Jury subpoenas ."
INTRODUCTION
The first question posed and answered by the Opinion is "may a lawyer
use a subpoena to compel the attendance of a witness at a pretrial court
proceeding, and then, after service, invite the witness to make a statement
or execute an affidavit in the requesting lawyers' office without notice to
opposing counsel, where required and thereafter relieve the witness of the
obligation to appear at the court proceeding?" To this question the Ethics
Committee and the Board of Governors answered "NO ."
The second question posed and answered by the Opinion is "may a
lawyer issue a subpoena to a person or entity accompanied by a letter (or
by other means) inviting that person or entity to "certify" requested
documents and provide them directly to the requesting lawyer, in lieu of
attending a pretrial hearing or trial, without notice to opposing counsel, or
a Grand Jury proceeding where such notice is not required?"
The
Committee and the Board of Governors again answered this question "NO ."
The Movants contest the validity of the Opinion under SCR 3.530(5), but
only insofar as the
investigations .
settings .
Opinion deals with pre-indictment Grand Jury
They do not challenge its propriety in any post-indictment
Thus, no other parts of the Opinion are before us for approval or
disapproval .
Unfortunately, the structure of the Opinion does not allow
segregating its treatment of these very different types of criminal proceedings .
The Movants' grounds for challenge are (1) that the Opinion changes wellsettled law, (2) that the Opinion is outside the jurisdiction of the Ethics Committee
as set out by SCR 3.530(1), since it was not issued in response to a request from
an attorney who was in doubt as to the propriety of his contemplated actions,
(3) that the Opinion does not differentiate between the subpoena power of a
Grand Jury prior to an indictment and the subpoena power of the Court after
indictment, (4) that the Opinion places a higher burden on the admission of
evidence before the Grand Jury than required for evidence at trial, and (5) that
the Opinion impermissibly places an overly burdensome strain on public
resources, has a "chilling effect" on current practices and procedures and is
highly impracticable.
The KMA "asks this Court to either clarify or modify the application of
Opinion E-423 in such a way as avoids the necessity of yet another
administrative burden being imposed on the offices of physicians by requiring
their personal appearance to produce and authenticate medical records
subpoenaed by Grand Juries."
The KBA responds (1) that SCR 3.530(2) "does not require that. . .formal
opinions be issued by way of individual requests for rulings," (2) that RCr 5.06, in
dealing with Grand Jury subpoenas, is more restrictive than the use of
subpoenas for post-indictment proceedings under RCr 7.02, (3) that Movants'
reliance on the rules and practices of foreign or federal jurisdictions is
inappropriate as their rules and procedures (which allow same) differ from
Kentucky's, (4) that the current criminal rules and forms do not authorize an
alternative form of subpoenas and (5) that the Opinion does not have an
independent disciplinary (chilling) effect since it's advisory only.
REVIEW OF ETHICS OPINIONS
The Ethics Committee of the KBA may submit to the KBA Board of
Governors a formal advisory opinion setting forth what activities constitute the
ethical or unethical practice of law. "If the recommended Opinion is approved by
three-fourths of the Board of Governors, it carries the weight of an advisory
opinion . This Court, however, is not bound by its terms . On proper request by an
aggrieved party, we have the authority to evaluate the Opinion and determine
whether it accurately states the law." Countrywide Home Loans v. Kentucky Bar
Association, 113 S .W .3d 105,107 (Ky. 2003) . The procedure is set out in SCR
3.530(5).
"Inquiring attorneys and ethics committee members tend to think of the
opinions as equal in authority to court rules . The result is, that when known, the
opinions tend to shape conduct to the same degree as the rules . Attorneys are
afraid to engage in conduct when told by the Ethics Committee and Board of
Governors that they may not engage in such conduct ." William H. Fortune, The
Role of Ethics and Unauthorized Practice Opinions in Regulating the Practice of
Law 309 N . Ky. L. Rev. 309, 321 (1998) . Thus, this court must always be aware
of the potential "chilling effect" ethics opinions can have on our practices and
procedures.
THE DISAGREEMENT OVER THE OPINION
Essentially E-423 would bar (as unethical) a Commonwealth's Attorney,
acting o n be half o f t he G rand J ury, f rom s erving a p erson o r ent ity with a
subpoena duces tecum, then allowing the person or entity served to certify the
documents, and deliver them to the Commonwealth's Attorney, or Grand Jury,
without the personal attendance and testimony from the business records
custodian or other witnesses.
Moreover, the Opinion suggests subpoenas for the Grand Jury may only
be issued by the Circuit Court Judge under RCr 5.06, as opposed to the Clerk
of the Court under RCr 7.02 .
As was noted by the Movants at the Oral Arguments on this matter, this
interpretation is totally at odds with the actual practice which has existed for more
years than this Court can remember .' With this position in mind, if one looks at
RCr 6 .24, you would have to ask : "why would you need approval of the Circuit
Judge to subpoena an attorney, or his staff, under RCr 6 .24, if, as is argued,
under RCr 5 .06, the Judge is the one who decides whether or not to sign and
issue the subpoena for all Grand Jury witnesses?" The answer is amply
demonstrated by our history of practice.
RCr 5.06 says the "Circuit Court" shall issue the subpoena, it does not say
the "Judge of the Circuit Court ." In fact, the subpoena is issued by the "Circuit
Court," through its clerk, as are all subpoenas .
Generally, the Judge of the Circuit Court is not aware of what witnesses are
appearing before the Grand Jury, thus the requirement that the Judge's
permission be secured prior to the issuance of a subpoena for the appearance of
attorneys, or their staff, under RCr 6.24. This was true even before we made
RCr 7.02 applicable to RCr 5 .06 by our amendment in January 2005 .
Thus,
except where provided otherwise, as in RCr 6.24, subpoenas are issued by the
clerk of the court.
One cannot forget that the Grand Jury is a constitutional body. Ky. Const .
§ 248 . Thus, while it is a part of the Circuit Court and its processes, "this does
not mean-that the court `controls' the grand jury's proceedings .
`The grand
jury's functional independence from the judicial branch is evident both in the
scope of its power to investigate criminal wrongdoing and in the manner in which
that power is ex ercised ."' H oskins v . M aricle , 15 0 S -W-3d 1, 1 7 ( Ky. 20 04)
(quoting United States v. Williams , 504 U .S . 36, 48, 112 S .Ct. 1735, 1742, 118
Not one of the Justices sitting on this case who have served as former Circuit Judges
(5) can recall ever having signed or personally issued a subpoena for a Grand Jury.
L.Ed .2d 352 (1992)).
To interpret RCr 5 .06 in such a manner as to give the
Judge of the Circuit Court the right and power to control who the Grand Jury can
subpoena gives away control of who it can effectively investigate . The more
concentrated the power, the more dangerous it becomes to our liberties . Thus,
our system of checks and balances are very fine-tuned .
For instance, our Grand Jurors are now chosen at random, (Administrative
Procedure of the Court of Justice, 2-10, Selection of Petit and Grand Jury), not
picked by the Judge .
Nor have our predecessors, in their wisdom, seen fit to
give the power to control the issuance of subpoenas to any one person . "The
clerk shall issue a subpoena, signed but otherwise in blank, to a party
requesting it, who shall fill in the blanks before it is served ." RCr 7.02(6)
(emphasis added) . And when this power is abused, we retain means of redress .
See, Bishop v. Caudill , 87 S.W.3d 1 (Ky. 2002).
Going further, the Opinion would bar the Commonwealth's Attorney, or his
or her agents, from using their discretion, upon behalf of the Grand Jury, in
excusing witnesses from appearances once they've been interviewed or given
written
statements .
In
essence,
the
Opinion
relies
on
Anderson
v.
Commonwealth , 63 S .W.3d 135 (Ky. 2002) for the proposition that if a party is
subpoenaed before a Grand Jury, he can only comply with the command of the
subpoena by actually appearing before the Grand Jury, testifying, and then being
released by the Judge of the Circuit Court . Again, this is an interpretation of the
2 If this position were approved, the testimony of every witness subpoenaed would be
immediately available to the defense through the Grand Jury transcripts under RCr
5.16(3), as opposed to witnesses' statements, which are now due more than 48 hours
prior to trial, or sooner, if ordered by the Court, per RCr 7.26 .
rules that is at odds with the practice as has preexisted the memory of the
current Justices on this Court .
We have never held that a Grand Jury or the Commonwealth's Attorney
could not waive or excuse full or partial compliance with the command of the
subpoena, or subpoena duces tecum.
Anderson dealt only with criminal trial
subpoenas . It was a case where the Defendant relied upon the availability and
presence of a witness subpoenaed by the Commonwealth for trial. The defense
felt the witness would be significant for its case. However, unbeknownst to the
Defendant, the Commonwealth excused the witness. Very clearly, we held under
those circumstances, the witness had "'a continuing obligation . . . to be available
as a witness until the case was concluded or until he was dismissed by the
court."' Anderson , 63 S .W.3d at 142 . (quoting Otis v. Meade , 483 S .W .2d 161,
162 (Ky. 1972)) . We did not hold that he had to testify for the Commonwealth as
he was subpoenaed to do ; that was the prerogative of the Commonwealth .
And what a witness does in front of the Grand Jury, or its agent, the
Commonwealth's Attorney, is the prerogative of the Grand Jury . The Grand Jury
is "an investigative body 'acting independently of either (the) prosecuting attorney
or judge."' United States v. Dionsio , 410 U .S . 1, 16, 93 S .Ct. 764, 773, 35 L.Ed
2d 67 (1973) (quoting Stirone v. United States , 361 U .S . 212, 80 S .Ct. 270, 273
4L .Ed .2d 252 (1960)). And it should remain so.
Fourthly, the Opinion establishes as unethical the issuance of subpoenas
to out-of-state parties, whether by fax, mail or otherwise, for the production of
records, unless they are served under KRS 421 .250 . Being a uniform act, KRS
421 .250 has been interpreted to authorize subpoenas duces tecum for records .
See, 7 A.L.R.4th 836 ; see also , Ex parte Simmons , 668 So.2d 901 (AI. Cr. App .
1995). The position taken by the Opinion seems to suggest that the Grand Jury
may only acquire records through compulsion as opposed to contact and
voluntary release .
Processes under KRS 421 .250 require motions in the Court convening the
Grand Jury along with an order, then a subsequent appearance in the court of
record within the county of the other state where the witness or records are
found, along with secondary motions and orders therefrom . It is a tedious, time
consuming and expensive process .
However, as was noted at oral argument,
most out-of-state businesses cooperate voluntarily once faxed a copy of the
subpoena. E-423 can be read to condemn this voluntary practice.
In particular, the KBA noted in its brief that "the committee's primary
concern was that by altering an official subpoena form to provide for an
authorized form of alternative compliance, or causing a subpoena to be
transmitted across state lines without compliance with the statutory procedures
for out-of-state service, a lawyer violates the ethical rules .
Such "invitation or
alteration" obfuscates the fact that the subpoena itself had no legal authority;
thus, the recipient of the subpoena is misled into believing that it is valid and
that he or she is legally obligated to comply or be subject to contempt.
Such
conduct is dishonest and from an ethical perspective, violates both SCR 3 .1303.4(c) and 8 .3(c) . . . ."
The Opinion suggests subpoenas are being sent out of state in a manner
that intentionally suggests they are legally binding, yet the language of the
Opinion is not limited to this premise .
In their arguments, the Movants acknowledge the availability of KRS
421 .250,
but suggest the entities are most often experienced and generally
10
aware of KRS 421 .250, and ask only for a faxed copy of the subpoena prior to
voluntary compliance .
They note the savings to the Commonwealth by this
voluntary cooperation . For example, Movants argue that "the Jefferson County
Grand Jury alone issued over 1,000 subpoenas last year.
According to the
Opinion, only medical records are exempt from the requirement that the
custodian personally attend .
Thus, under KRS 421 .250, all out of state
witnesses must be reimbursed for mileage and paid $5.00. . . under KRS 421 .030,
the Commonwealth must reimburse witnesses the necessary expenses for
attendance .
Our Grand Jury regularly subpoenas records from other states,
some as far away as California .
Airfare, accommodations, and per diem
allowance for a custodian from out of state could cost the Commonwealth
hundreds of thousands of dollars each year in Jefferson County alone. All
this for a two or three second statement attesting to the authenticity of the
already certified records . This is not the way the Commonwealth should spend
its precious resources ."
We are simply not asked to approve an Opinion that limits its effect to an
intentional misrepresentation of the validity of a subpoena and we decline to
approve any Opinion that suggests it is unethical per se for purposes of these
investigations . In our opinion, it is not unethical to contact an entity out of state
and to fax them a subpoena if requested, or to advise them that KRS 421 .250 will
be used, if necessary (as long as such use is intended at the time) if compliance
is not forthcoming .
"An `ethics question' should only arise if there is a deliberate attempt to
circumvent the . . .Rules as written or customarily applied in the particular forum,
perhaps with a view to dispensing with notice to an opponent or securing some
unfair advantage .
In the absence of same, there would seem to be no real
question of 'ethics' involved, but only a difference of opinion as to the proper
interpretation of the-Rules." KBA E-304.
That the documents received in such manner would be inadmissible at
trial is irrelevant; hearsay evidence is admissible before a Grand Jury. See KRE
1101(d)(2) ; cf. United States v. Barone, 584 F2d 118 (6th Cir. 1978) .
A Grand
Jury can issue an indictment even if the District Court determines a lack of
probable cause to support the charges.
435 (Ky. App. 2002).
Commonwealth v. Yelder, 88 S .W .3d
Moreover, in reviewing the various forms of subpoenas
contained in the record, we find no alterations as to form that violate our rules .
Recognizing however, that different practitioners in different practices are
reading RCr 5 .06 and 7.02 in a different light, a majority of this Court, pursuant to
RCr 13.08, now "otherwise directs" that RCr 5.06 be, and is, hereby amended,
effective as the date of the finality of this Opinion, to read :
RCr 5 .06 Attendance of Witnesses before the Grand Jurv
The Clerk, upon request of the foreperson of the Grand Jury or of
the attorney for the Commonwealth, shall issue subpoenas for
witnesses . The attendance of witnesses may be coerced as in
other judicial proceedings, unless, and until, excused, or modified,
by the requesting party. RCr 7.02 shall apply to Grand Jury
subpoenas except that a subpoena issued pursuant to this rule
may command the person to whom it is directed to produce the
books, papers, documents or other objects designated therein to
the foreperson of the Grand Jury or the Commonwealths Attorney
or his agent, without requiring the personal appearance of the
witness before the Grand Jury.
For the above reasons, we hereby Vacate all portions of KBA Opinion E423 to the extent it addresses Grand Jury practices and proceedings . Having
done so, we will not here address Movants' argument that Formal Opinions are
limited to standards set out in SCR 3.350(1) . Tomorrow is another day.
All concur .
ENTERED :
May 19, 2005 .
COUNSEL FOR APPELLANT:
David A. Sexton
Suite 1001, Fiscal Court Building
531 Court Place
Louisville, Kentucky 40202
Kenton R. Smith
P.O. Box 249
Brandenburg, Kentucky 40108
Nikolas M. Fegenbush
33 N . Maysville St ., Suite 200
Mt . Sterling, Kentucky 40353
Patrick Michael Malone
116 N . Upper Street
Lexington, Kentucky 40507
Roy Kimberly Snell
P.O. Box 229
LaGrange, Kentucky 40031
George Barry Bertram
P.O. Box 27
Campbellsville, Kentucky 42718
Charles J . Cronan
400 W. Market Street, Suite 1800
Louisville, Kentucky 40202
Richard Boling
511 S. Main Street
2d Floor Courthouse Annex
Hopkinsville, Kentucky 42240
Teresa Young
514 W. Liberty Street
Louisville, Kentucky 40202
Deborah Jeanne Anderson
514 W. Liberty Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE :
Linda Gosnell
Kentucky Bar Association
514 W. Main Street
Frankfort, Kentucky 40601
Bruce K. Davis
Kentucky Bar Association
514 W. Main Street
Frankfort, Kentucky 40601
COUNSEL FOR AMICUS CURIAE :
LOUISVILLE METRO PUBLIC DEFENDER :
J . David Niehaus
200 Advocacy Plaza
719 W. Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR AMICUS CURIAE:
KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS :
Jerry J. Cox
P .O. Box 1350
Mt. Vernon, Kentucky 40456
William E. Johnson
326 W. Main Street
Frankfort, Kentucky 40601
Phyllis K. Lonneman
202 N. Mulberry Street
Elizabethtown, Kentucky 42701
W. Robert Lutz
120 W. Fifth Street
Covington, Kentucky 41011
Alec G . Stone
P.O. Box 487
Brandenburg, Kentucky 40108
Kathryn G. Wood
116 S. Main Street
Somerset, Kentucky 42501
,,*uPrem$ (mart a£ 'Arnfurkv
2004-SC-000305-KB
R. DAVID STENGEL,
COMMONWEALTH'S ATTORNEY,
30th JUDICIAL DISTRICT, ET. AL.
V
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000336-KB
KENTUCKY MEDICAL ASSOCIATION
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000332-KB
RICHARD BOLING,
COMMONWEALTH'S ATTORNEY 3rd
JUDCIAL DISTRICT
V
MOVANT
RESPONDENT
2004-SC-000347-KB
RAYMOND M . LARSON,
COMMONWEALTH'S ATTORNEY
22nd JUDICIAL DISTRICT
IN SUPREME COURT
MOVANT
KENTUCKY BAR ASSOCIATION
and
2004-SC-000357-KB
IRV MAZE, IN HIS OFFICIAL
CAPACITY AS JEFFERSON COUNTY
ATTORNEY
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000350-KB
KENTON R. SMITH,
COMMONWEALTH'S ATTORNEY 46th
JUDICIAL DISTRICT
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000349-KB
GEORGE W. MOORE,
COMMONWEALTH'S ATTORNEY 21 st
JUDICIAL DISTRICT
V.
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
RESPONDENT
2004-SC-000346-KB
ROY K. SNELL, COMMONWEALTH'S
ATTORNEY 12th JUDICIAL DISTRICT
MOVANT
IN SUPREME COURT
V
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000339-KB
BARRY BERTRAM,
COMMONWEALTH'S ATTORNEY 11th
JUDICIAL DISTRICT
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
ORDER
The To Be Published Opinion and Order in the above-styled case, entered
May 19, 2005, is hereby amended by the substitution of a new Opinion and
Order, attached hereto, in lieu of the Opinion and Order originally rendered as
said amendment changed the pagination. Said amendment is made to clarify the
identification of parties counsel and does not affect the holding of the Opinion
and Order as originally rendered .
ENTERED: JUNE 1, 2005.
,$ixyremE (gourf of Rrufurkv
2004-SC-000305-KB
R . DAVID STENGEL,
COMMONWEALTH'S ATTORNEY,
30th JUDICIAL DISTRICT, ET. AL .
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000332-KB
RICHARD BOLING,
COMMONWEALTH'S ATTORNEY 3rd
JUDCIAL DISTRICT
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
2004-SC-000336-KB
KENTUCKY MEDICAL ASSOCIATION
V
_.
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
RESPONDENT
2004-SC-000347-KB
RAYMOND M . LARSON,
COMMONWEALTH'S ATTORNEY
22nd JUDICIAL DISTRICT
IN SUPREME COURT
MOVANT
KENTUCKY BAR ASSOCIATION
and
2004-SC-000357-KB
IRV MAZE, IN HIS OFFICIAL
CAPACITY AS JEFFERSON COUNTY
ATTORNEY
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000350-KB
KENTON R . SMITH,
COMMONWEALTH'S ATTORNEY 46th
JUDICIAL DISTRICT
v
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000349-KB
GEORGE W. MOORE,
COMMONWEALTH'S ATTORNEY 21 st
JUDICIAL DISTRICT
V
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
RESPONDENT
2004-SC-000346-KB
ROY K. SNELL, COMMONWEALTH'S
ATTORNEY 12th JUDICIAL DISTRICT
MOVANT
IN SUPREME COURT
V
KENTUCKY BAR ASSOCIATION
and
RESPONDENT
2004-SC-000339-KB
BARRY BERTRAM,
COMMONWEALTH'S ATTORNEY 11th
JUDICIAL DISTRICT
V.
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
ORDER
The To Be Published Opinion and Order in the above-styled case, entered
May 19, 2005 and amended June 1, 2005, is hereby amended by the substitution
of new pages 1 and 15, attached hereto, in lieu of pages 1 and 15 of the Opinion
and Order originally rendered .
Said amendment is made to clarify the
identification of parties counsel and does not affect the holding of the Opinion
and Order as originally rendered .
ENTERED: JUNE 9, 2005.
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