News & Updates
Mother Nature Strikes Again ...
Once again devastating flooding has impacted multiple communities across the Commonwealth of Kentucky. Everyone in those communities is in our thoughts and prayers. The LMICK Board and Staff are so sorry for the lives lost, the homes and keepsakes within them ruined, the businesses destroyed and interrupted, and the uncertainty those affected face in the days ahead. With regard to lawyers more specifically, we know that some of our insureds have been affected. When tornadoes hit the state in 2021, LMICK developed materials to assist lawyers whose offices and/or client files were destroyed or damaged. Aside from dealing with any personal loss, lawyers have ethical responsibilities to their clients in these unfortunate circumstances and the recent flooding may well trigger some of these duties. For example, lawyers must notify clients of the damage and advise of the risk of inadvertent disclosure of client confidential information if files are scattered. Similarly, clients must be advised of the destruction of their files and of the lawyers efforts to reconstruct same. Below are links to materials that may be useful if your office and client files have been damaged.
- Client Notification Requirements and Template LetterClient Notification Requirements and Template Letter
- ABA Ethical Obligations to Clients in the Wake of a DisasterABA Ethical Obligations to Clients in the Wake of a Disaster
- ABA Formal Opinion 482ABA Formal Opinion 482
If you need further assistance or guidance that these materials do not address, please contact us. Finally, we understand there may be delays in submitting renewal applications or premium payments. If any of you are facing these challenge because you’ve been impacted by the flooding, please let us know that so we can work with you to come up with a plan. You will NOT lose coverage due to flood-related delays.
KY Supreme Court Decision Alert: Davenport v. Kindred Hospitals Limited Partnership (2024)
LMICK wishes to make sure you are aware of the Court’s ruling in Davenport v. Kindred Hospital Limited Partnership, 2023-SC-0039-DG (2024), and its implications regarding the way you calculate the required time period for filing wrongful death actions and/or negligence claims on behalf of estates. Failing to abide by the Court’s ruling in Davenport will likely result in late filings which will ultimately be barred and dismissed. LMICK strongly encourages you to read the Court’s full Opinion.
On October 24, 2024, the Supreme Court of Kentucky issued its ruling in Davenport. This was a medical malpractice and wrongful death lawsuit against Kindred filed by Davenport, as the appointed personal representative of an estate, in Jefferson Circuit Court. The Circuit Court granted Kindred’s motion for summary judgement on the basis that Davenport’s suit was not timely filed. The appellate court agreed, and the Supreme Court affirmed.
The case involves the estate of Penny Ann Simmons, who passed away on July 19, 2018. Davenport was appointed as the personal representative of Simmons’ estate by the Spencer District Court on September 11, 2018. However, the Order of Appointment was not entered by the Spencer County Clerk until ten days later, September 21, 2018. Davenport filed her medical malpractice and wrongful death lawsuit on behalf of the estate against Kindred on September 20, 2019. Kindred argued that the lawsuit was filed outside the one-year statute of limitations, which they claimed began when the Judge signed the appointment order.
The Jefferson Circuit Court granted Kindred’s motion for summary judgment, ruling that the lawsuit was indeed filed outside the statute of limitations. The court found that the statute of limitations began when the Judge signed the Order of Appointment, citing KRS 395.105. The Court of Appeals affirmed the Circuit Court’s decision but invited the Kentucky Supreme Court to review the issue.
The Kentucky Supreme Court affirmed the lower courts’ decisions. The Court held that probate proceedings, including the appointment of a personal representative, are special statutory proceedings. Therefore, the procedural requirements of KRS 395.105, which state that the appointment is effective upon the Judge’s signing, prevail over the Kentucky Rules of Civil Procedure. The Court also clarified that the one-year limitation period for filing claims, as set forth in KRS 413.180(1), begins at the time of the appointment, which is when the Judge signs the Order. Thus, Davenport’s lawsuit was filed outside the permissible time frame, and the summary judgment in favor of Kindred was affirmed.
Many attorneys look at the date of the Entry of the Order of Appointment and not the date the Order was signed. In some cases, entry can be delayed a week or more from the actual court date of the Judge’s signing. Therefore, have mechanisms in place to determine when the Judge signs the Order of Appointment. If you are waiting on such an Order, calling the Court regularly for status checks is not out of bounds.
Probate Court and Required E-Filing
The Davenport case raises another important issue regarding probate cases and required e-filing. E-filing is now required for all probate matters throughout all of Kentucky’s courts. As such, attorneys must submit Orders to the Judge via e-filing. You should be aware that delays may occur in the signing and entering of the orders. Thus, it is incumbent upon the attorney to check, double check and triple check when the signing and entry happens in these kinds of cases.
Therefore, be careful when calendaring critical dates for your cases. And be sure to be mindful of when Orders are signed by your presiding Judge.
CLE On-Demand Coming Soon!
For LMICK’s 1Q CLE, on February 18, 2025, LMICK hosted a live Webinar titled, “Horseshoes and Violating SCR 3.130 (3.3) (Candor to the Tribunal) – When Coming Close Has Consequences.” The Webinar speakers were the Honorable Judge Brian C. Edwards, Jefferson County Circuit Court, Division 11; Judge Jerry D. Crosby, 12th Judicial Circuit; Judge Denotra Spruill Gunther, Fayette District Court; and Judge Squire N. Williams, III, Family Court Judge, Chief Circuit Judge, Franklin County, 48th Judicial Circuit. This Webinar will soon be available on-demand for 1 hour of Ethics CLE credit at www.lmick.com!
The panelists discuss situations they have observed in which attorneys have violated, or come close to violating, SCR 3.130 (3.3). A violation of a lawyer’s duty of candor toward the tribunal can have serious consequences and implications for both the attorney and the case. Hear from these distinguished jurists on how to avoid violations of SCR 3.130 (3.3) while still zealously representing your clients in court. This program has been approved for 1 hour of Ethics CLE. Please check our website www.lmick.com to take advantage of this CLE opportunity and learn about this important topic!
Practice Management
“Empowering Legal Teams with AI: The Essentials of Generative AI for Lawyers”
As part of LMICK’s continued AI series, NetGain Technologies, a globally ranked managed security service provider, has compiled the above-titled Guide for lawyers and their offices.
According to the Guide, and as LMICK has also previously discussed, “AI offers an unprecedented chance to boost productivity and focus on high-value tasks. Yet, caution is needed. Legal professionals must navigate their ethical responsibilities carefully when using AI.”
LMICK recommends that all of its insureds read the complete Guide. But NetGain Technologies’ Guide provides the following information to consider and implement in your practice when using AI.
Common Issues and Concerns Associated with the Use of AI by Lawyers:
- Confidentiality: Lawyers must maintain client confidentiality to uphold legal privilege. Before using AI, they should evaluate data protection measures and ensure no confidential information is entered into prompts or used as grounding data.
- Accuracy: Lawyers are duty-bound to act in clients’ best interests. Human oversight is essential to ensure AI outputs are accurate and free from "AI hallucinations" (false or misleading information generated by AI). AI should assist as a supplement or copilot, not operate independently.
- Data Privacy: When AI systems involve personal data—for training, testing, or prompts— use must comply with data protection laws. Lawyers should review AI providers’ privacy and data protection commitments carefully.
- Intellectual Property: AI solutions may use data protected by copyright. Lawyers should secure contractual protections against third-party copyright infringement claims from their AI service providers.
Five AI Tips and Tricks from NetGain Technologies
- Refine Your Prompts for Precision: Frame prompts in a way that is clear, concise, and focused on specific legal tasks (e.g., "Summarize this contract clause regarding liability limitations"). Avoid including sensitive information. If possible, use placeholders or generic terms (like "Client A" or "Contract X") and manually update specific details later.
- Prioritize Summarization and Analysis: Use AI for tasks that streamline research and repetitive tasks—such as summarizing case law, drafting legal memos, or outlining key contract clauses. Always review AI-generated summaries to ensure accuracy.
- Customize Responses: Many AI tools allow for setting specific tones or styles. Choose a formal, neutral tone for legal documents and a more accessible style for client-facing summaries.
- Proofread Thoroughly to Mitigate AI Hallucinations: AI may generate “hallucinations,” where it confidently produces incorrect information. Cross-reference AI-generated output with reliable legal sources and avoid relying solely on AI for case citations or precise legal principles.
- Avoid Using AI for Final Legal Opinions: While AI can help synthesize information and generate ideas, it’s crucial to remember it is not a substitute for an attorney’s final judgment or legal advice.
There are additional resources provided within the Guide that LMICK recommends reviewing that will provide further guidance and best practices for you and your firm. LMICK will continue to have more useful AI information, tips, and tricks in our AI series in future Issues of the LMICK Minute. So, stay tuned!
Questions? Contact Jared Burke (
“The Ghosts of Clients Past – The Dangers of Financial Elder Abuse Claims Against Estate Planners”
For elder law practitioners and estate planning attorneys, LMICK wishes to bring to your attention this important topic and republished article1 provided by Hinshaw & Culbertson LLP. This article discusses that, “In states with Financial Elder Abuse statutes, legal malpractice claims by seniors invoking those statutes are common. These laws are generally understood to address the conversion of property of elderly or dependent adults based on undue influence or duress. In fact, liability can usually be established based on a showing of any wrongful taking of the elder’s property.”
Some takeaways from the article are that, “The law regarding the circumstances under which an estate planner may be sued for financial elder abuse remains unsettled. However, the existing precedent is instructive on two points.
- First, there is a heightened risk of liability when conflicts are not adequately identified and waived or avoided altogether.
- Second, late-in-life changes are risky without adequate safeguards that build a record of adequate due diligence on testamentary capacity. Thus, as is true with most professional liability risks, the client file is the practitioner's best defense. Though testamentary capacity can be satisfied when the client suffers numerous disabilities, avoiding risk to successors is best achieved by documenting the process of evaluating the client under the appropriate standards.”
LMICK recommends that you read the full article for all of the important issues discussed pertaining to this area of law.
Questions? Contact Jared Burke (
“Clients Who Need Long-Term Care: Understanding Medicaid Eligibility for Your Clients” & SCR 3.130 (1.1) Competent Representation
Long-term care planning is a concern for not just elder law practitioners, but also estate planning attorneys and many others. Lawyers With Purpose recently published the above-titled online article which discusses this very issue.
As the article states, “Long-term care encompasses a range of services designed to assist individuals who can no longer manage the essential activities of daily living. For estate planning clients, long-term care is a significant consideration.” If your practice concerns estate planning or you have a client that relies upon Medicaid benefits for the short, or especially, long-term, be mindful of Medicaid’s rules and regulations which are constantly changing, especially at the state level.
Additionally, there are professional rules of conduct considerations to keep in mind when dealing with Medicaid and long-term care benefit eligibility, and other similar types of regulation-heavy areas of the law. As the article discusses, there are many nuances and rules that the practitioner must know and follow regarding Medicaid eligibility.
1This article was originally published in the Hinshaw & Culbertson LLP “Lawyers’ Lawyer” Newsletter. Republished with permission. Visit www.hinshawlaw.com for more information.
Common Pitfalls in Medicaid Planning
- Failing to provide complete documentation.
- Misreporting income or assets due to misunderstanding eligibility rules.
- Missing deadlines for submitting additional information or appealing a denial.
- Overlooking the need for annual Medicaid recertification.
- Failing to stay current on Medicaid regulations that may change at both the state and federal level.
Accordingly, LMICK reminds you, as always, to keep in mind the Rules of Professional Conduct which are contained within SCR 3.130. For example, SCR 3.130 (1.1) (Competence), is a crucial Rule that every lawyer should adhere to. This Rule provides, “A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Thus, if you have little or no knowledge about Medicaid’s rules regarding long-term care eligibility, or whatever your particular area of law your case involves, always be mindful of this Rule (and others) when or if you agree to accept the representation of a client. As we often say, don’t dabble, and certainly not in areas with lots of regulations and places to fall short in competency.
Also, be sure not to accept an advance fee or any payment from a client to simply educate yourself on a specific area of the law. Exhausting the client’s advance fee or payment for your services before the case even gets off the ground will require further payment from your client and likely lead to possible issues within the representation.
As a hypothetical example, a lawyer may have a client who is the guardian of a ward who is seeking long-term care benefits through Medicaid for the ward. However, two years before the application for long-term care benefits was filed with Medicaid or sought, the ward transferred a piece of property to a nephew for less than fair market value which has violated Medicaid’s “Five-Year Look-Back Period.” Unaware that Medicaid has a “Look-Back” period or what that even means, the lawyer has the client execute an advance fee agreement in accordance with SCR 3.130 (1.5) (Fees). The lawyer then expends the full advance fee by educating himself/herself about this area of law with zero to little work actually done to achieve the client’s goals or to advance the client’s case. The lawyer now faces the daunting task of asking the client for more money for their services, and still faces the uncertainty of what the legal issues before them may be since this area of law is so unfamiliar to them. Accordingly, always be mindful of the professional obligations that govern us attorneys here in the Commonwealth.
Questions? Contact Jared Burke (
Lawyer Well-Being
Maintaining well-being during the cold and often dreary month of February can be challenging, especially for professionals like lawyers who often face high-stress workloads and long hours. Here are some practical strategies to increase your well-being during this time of the year.
- Physical Health
- Exercise Regularly: Engage in activities that fit into a busy schedule, such as yoga, stretching, or quick gym sessions. Even a brisk walk during lunch can boost energy and improve mood.
- Stay Active Indoors: Use fitness apps or online workout videos to maintain movement during colder days.
- Eat Well: Focus on nutrient-dense, warm, and hearty meals, including soups, whole grains, and seasonal vegetables to maintain energy.
- Hydration: Drink plenty of water and herbal teas, as it's easy to become dehydrated in colder months due to indoor heating.
- Sleep Hygiene: Prioritize consistent sleep patterns to support mental and physical health.
- Mental Health
- Mindfulness Practices: Use meditation apps or take short breaks to practice mindfulness or deep breathing to reduce stress.
- Avoid Overworking: Set clear boundaries to prevent burnout. Lawyers can designate work-free times for rest and relaxation.
- Journaling: Write about your day or goals to process emotions and maintain focus.
- Therapy or Coaching: Regular sessions with a therapist or life coach can provide professional guidance for managing stress and balancing life.
- Social Well-being
- Networking with Peers: Attend virtual or in-person networking events for connection and professional development.
- Community Engagement: Participate in volunteer work or community activities to foster a sense of purpose and connection.
- Reconnect with Family and Friends: Schedule time for meaningful interactions, even if it’s just a quick video call.
- Environmental Well-being
- Optimize Your Workspace: Create a warm, well-lit, and organized work environment to combat winter gloom.
- Get Natural Light: Take advantage of daylight hours by stepping outside or sitting near windows. Consider a light therapy lamp to counteract seasonal affective disorder (SAD).
- Personal Growth
- Continuing Education: Winter can be an ideal time to focus on professional development through webinars, courses, or reading.
- Skill Development: Learn something unrelated to law, like cooking, painting, or playing an instrument, to diversify your interests and relax.
- Winter-Specific Activities
- Enjoy Seasonal Sports: If you like the outdoors, try skiing, snowboarding, or ice skating.
- Celebrate Small Wins: Create cozy rituals like reading by the fireplace, enjoying a warm drink, or planning a winter getaway.
- Wellness Programs
- Employer Support: Take advantage of wellness initiatives offered by your firm or organization, such as counseling or fitness reimbursements.
- Peer Support Groups: Join lawyer-specific wellness programs or forums that address mental health in the legal profession.
By incorporating these strategies, lawyers can maintain balance and resilience, even during the most challenging winter months. Only a healthy lawyer can support a healthy practice!
Questions? Contact Jared Burke (
Know That Help is Always Available
If you are struggling with grief, sadness, anxiety, or any other emotion or stressor that is negatively impacting your daily life, please reach out for help. All Kentucky lawyers are eligible for four free visits with a mental health professional through the Kentucky Lawyers Assistance Program. For more information about the variety of confidential resources KYLAP offers, please visit www.KYLAP.org.
Upcoming Events
We look forward to seeing you!
We are proud to support the organizations that support you and your work! We will be out and about this winter, leading CLEs and sponsoring events. We hope you can join us at one of these currently scheduled events (and make sure to come say hello)!
February 22: Polar Bear Plunge, Louisville
February 28: Barren Co. Bar Association, Glasgow
March 8: Legal Food Frenzy Kick Off (YLD), Lexington
March 13-14: KDC Spring Meeting, Louisville
March 18: Central Kentucky, Inns of Court, Lexington
We want to hear from you! Have a CLE topic you would like to see? Send suggestions to
Need a CLE Speaker? We would love to speak to your group! You can check out our updated list of available topics and request to schedule, here.
Angela Logan Edwards – President/CEO
Courtney Risk – Education & Engagement Specialist