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Education: J.D., University of Louisville Law School,Louisville, Kentucky, 1976. State prosecutor 1977-1979. Entered into private practice concentrating on criminal law defense in state and federal courts, from DUI to death penalty jury trials. Nationally : Martindale-Hubbell AV RATING, 1984. Bar Register of Preeminent Lawyers, (..." just 5% of all law firms in America..." are selected to be included in this annual publication.)1990. Speaker: criminal law, procedure and professional responsibility. 2005 Kentucky Association of Criminal Defense Lawyers Haddad Award: "Old school in the best sense -- a fearless advocate for his clients who always places their interests first and never wavers in their defense no matter the odds." Recognized for his "complete knowledge of the law, keen sense of strategy, effective negotiating skills, thorough and exhaustive trial preparation, excellent trial skills and unique style and persuasive way with juries." Selected as a TOP LAWYER in 2008, 2009, 2010, 2011, 2012, 2013 and 2014 in The Louisville Magazine, Louisville, KY in the CRIMINAL LAW, DUI/DWI, CONSTITUTIONAL LAW sections; Selected to be included in KENTUCKY SUPERLAWYERS publication 2008 [only 22/15,000 lawyers selected statewide in the area of CRIMINAL DEFENSE] and again in2009, 2010, 2011, 2012, 2013 & 2014 in the area of CRIMINAL LAW from over 17,000 member attorneys with the Kentucky Bar Association. 2008-2009-2010-2011-2012-2013 & 2014 KENTUCKY SUPER LAWYERS featured in the KENTUCKY MONTHLY magazine in August 2008-09-10-11-12 editions. Notified on 9-1-2011 of selection for inclusion in the 2012 edition of The Best Lawyers In America in the area of CRIMINAL DEFENSE: Non-White Collar; selected again in 2013 & 2014.
Selected for inclusion in the 2010 edition of THE BEST LAWYERS IN AMERICA in the speciality of Criminal Defense: Non-White Collar.[ Only 6 Louisville, KY trial lawyers selected to receive this honor in this practice area.] Book to be available in November, 2009. 8-8-2010 notified of selection for inclusion in the 2011 edition of THE BEST LAWYERS IN AMERICA in the practice area of CRIMINAL DEFENSE. Nationwide 41,452 attorneys in 82 legal specialties listed from a pool of 1.1 million lawyers (less than 4% selected in the nation). Books to be available in November 2010. Honored again in 2011, 2012,2013 & 2014.
Selected for inclusion in the PREMIER EDITION KENTUCKY'S BEST LAWYERS MAGAZINE 2011. To be printed February 25,2011. Attorney Frank Mascagni selected for the cover and an article on one of his exceptional cases to be featured in the magazine. Magazine to be inserted in The Louisville Courier-Journal, The Lexington Herald-Leader and The Wall Street Journal, Kentucky subscribers; and other legal subscribers of publications of ALM: Corporate Counsel Magazine, The American Lawyer. The National Law Journal and on LAW.COM. Selected again in 2013.
PHOTO TAKEN AT THE WAYSIDE CHRISTIAN MISSION WOMEN AND CHILDREN SHELTER when Santa (Frank Mascagni III) sponsored a Christmas Party for the temporary residents. Pictured above are Santa and his elves (Mascagni Law Office staff and children and grandchildren and helpers).
Selected for inclusion in the GREATER LOUISVILLE METRO PREMIER EDITION 2011 OF ATTORNEY AT LAW MAGAZINE. To be published May, 2011 by Target Market Media,LLC. Attorney Mascagni to be featured in a 4 page feature article as "Solo Practioner of the Month".The digital edition is viewable on the home page of the website:
NATIONAL HONOR: Avvo Rating: SUPERB 10.0 RATING:JULY 15, 2011;
Featured in Virginia SuperLawyers 2011 received 7-29-2011 as a Kentucky SuperLawyer.
Selected for inclusion in Corporate Counsel, June 2010 as a Top Lawyer. Selected again in June, 2011.
Notified on September 19, 2011 of selection into the Inaugural Edition of America's Most Honored Professionals 2011. Only the top 10% of all recognized American professionals have been so honored with this award.
CLOSING ARGUMENT ON YOU TUBE 2011:
COMMONWEALTH OF KENTUCKY VS. DANTE D. WATTS SR. FOUR DAY JURY TRIAL JUNE 27-30, 2011 JEFFERSON CIRCUIT COURT, DIVISION 6 JUDGE OLU STEVENS LOUISVILLE, KENTUCKY FRANK MASCAGNI, III, DEFENSE COUNSEL FRANK DAHL, PROSECUTING ATTORNEY COMMONWEALTH OF KENTUCKY VS. DANTE WATTS, SR: Cases numbered 09-CR-03708 and 11-CR-1696. Judge: Olu Stevens, Prosecutor : Frank Dahl. Client charged with complicity to traffic in cocaine with a handgun, complicity to traffic in cocaine with a handgun within 1000 yards of a school and complicity to traffic in marijuana under 5 pounds with a handgun. Second indictment charging status offender as PFO-I (Persistent Felony Offender): client's exposure :20 years to Life. Opening by prosecutor claims approx. 7 pounds of powder cocaine, crack cocaine [over 1888 grams total] and marijuana, handgun, baggies, and ammo and over $40,000.00 in cash, scales, etc., seized. 4 day scheduled jury trial. Voir dire on 6-27-2011; openings 6-28-2011 and 4-5 witnesses called by the government. Total of 12 witnesses called by the prosecutor. 7 year offer rejected by client. More government proof scheduled 6-29-2011, the defense offered no proof during it's case in chief. Closings set for 6-30-2011. Attorney Mascagni lead counsel for the defense. Jury out 3.8 hours and returned a verdict of NOT GUILTY ON ALL SIX VERDICT FORMS , substantive, enhanced and as an alleged complicitor. It was a good defense verdict. June 30, 2011.
JURY INSTRUCTIONS READ BY THE COURT AND DEFENSE COUNSEL'S CLOSING ARGUMENTS IN 6 PARTS POSTED ON YOU TUBE 8-11-2011: PART 1: http://youtu.be/mgeYo5tkadQ PART 2: http://youtu.be/IRlvivW_VYQ PART 3: http://youtu.be/fyP42C0L3OI PART 4: http://youtu.be/IPIVpKhofu4 PART 5: http://youtu.be/VX7Fle2i1qo PART 6: http://youtu.be/hZmQ-oC20nE, goodlife430 has made a comment on Closing Argument Part 6:Great series of closing arguments to listen to. A great orator and advocate, a great lawyer.
Author of an article titled " Take Care of Your Reputation, It's Your Most Valuable Asset" published in the September 2011 publication of Attorney At Law Magazine, Greater Louisville Metro.www.targetmarketmediallc.com
Author of an article titled " Attorney-Client Sexual Relations: Now Governed by the Kentucky Rules of Professional Responsibility" to be published in the November 2011 publication of Attorney At Law Magazine, Greater Louisville Metro.www.targetmarketmediallc.com
Wrote an ethics article that was published in the October 2011 KACDL Newsletter (Kentucky Association of Criminal Defense Lawyers). www.kacdl.net.
2012 AV PREEMINENT RATING RECOGNITION AWARD FROM MARTINDALE-HUBBELL: Notified on 10-27-2011 of this award; again in 2012, 2013 and 2014.
The First 48 | AETV.com Televison show featured a murder case in Louisville, KY where Frank Mascagni was appointed by the trial judge to represent a defense witness during trial. Show aired on November 3, 2011 at 9:00 p.m. EST on the A & E channel.
Dear Frank Mascagni III,
PHOTO TAKEN IN FRONT OF MASCAGNI LAW OFFICE- Frank Mascagni III, Esq. and Chastity Brown, legal secretary. April 27, 2009
Law Horse displayed in front of Mascagni Law Office for Louisville, Kentucky Galloplooza celebration.
Notified by The Best Lawers in America of selection into the 2013 edition in the area of Criminal Defense.
Notified on 10-3-2012:
Notified on 10-25-2012 of selection as AV Preeminent Rating by Martindale-Hubbell: " HIGHEST POSSIBLE RATING IN BOTH LEGAL ABILITY AND ETHICAL STANDARDS".
Selected for the cover of KENTUCKY'S BEST LAWYERS 2013 Magazine to be distributed 2-22-2013 as an insert into The Courier-Journal newspaper in Louisville, KY; the Lexington Herald- Leader newspaper in Lexington, KY and the Wall Street Journal in KY.
LOUISVILLE MAGAZINE, MARCH 2013 and APRIL, 2013 : Frank Mascagni selected as a Louisville, KY TOP LAWYER in the practice areas of Criminal Defense, Non-White Collar Crime and DUI/DWI for 2013 by a vote of his peers. www.loumag.com
Member of Association of Federal Defense Attorneys 2013: www.afda.org/
Congratulations on being selected as one of Kentucky’s Top Rated Lawyers. Notified on 4-26-2013 of selection.
Notified on June 3, 2013 of my selection as a 2013 U.S. News- Best Lawyers " Best Law Firms" ranking.
August 15, 2013: I would like to congratulate you again on having been selected by your peers for inclusion in the 20th Edition of The Best Lawyers in Americafor in the practice areas of: Criminal Defense: Non-White-Collar and Criminal Defense: White-Collar.
This email is to inform you that the embargo on the 20th Edition of The Best Lawyers in America has lifted. The new 2014 list is now available on BestLawyers.com and you are free to publicize your rankings.
• Super Lawyers: 2008 - 2014
Admitted: 1977, Kentucky
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What Every Lawyer Should Know PRIOR TO Advising Their Client To Enter A Plea Of Guilty In A Criminal Case: Collateral Consequences Of A Criminal Conviction In Kentucky - (2014)
WHAT EVERY LAWYER SHOULD KNOW PRIOR TO ADVISING THEIR CLIENT TO ENTER A PLEA OF GUILTY IN A CRIMINAL CASE: Collateral Consequences Of A Criminal Conviction In Kentucky .................................................................................................................................. I'm nervous when I see newly admitted lawyers or attorneys who practice primarily civil or family court law make an appearance in a criminal defense case. Sometimes even experienced criminal defense lawyers fail to fully advise their clients of potential collateral consequences that will or can occur upon entry of a plea of guilty to a violation or a crime and sentencing on a criminal offense in Kentucky. The purpose of this article is to acquaint or remind all attorneys that practice even one criminal defense case, that there are collateral consequences that don't appear on the face of the criminal statute that must be considered. Take some time to ask questions of your client. You are responsible as their counsel and are directed by the Sixth Amendment to provide effective assistance of counsel. This includes advising on the consequences of a conviction. Padilla v. Kentucky, 130 S.Ct.1473 (2010) and Stiger v. Commonwealth , 381 S.W.3d 230 ( Ky. 2012). .............................. This article is space restricted and does NOT include every consequence. It is meant as a general checklist only to use as a starting point to compose your own checklist to insert in your client file at the initial interview. Ask questions of your client in the following areas to generate a conversation as to what is at stake in addition to their freedom, fines and court costs. Focus grasshopper and ready the fight. .....................................................Resources: Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea, 54 How. L.J. 675, 690 (2011) by Gabriel J. Chin and The Advocate, Journal of Criminal Justice Education & Research, Kentucky Department of Public Advocacy, June 2013: Collateral Consequences Of Criminal Convictions In Kentucky by Glenn S. McClister. ............................................................... Kentucky State Court Considerations §RCr 8.08. Pleas A defendant may plead not guilty, guilty or guilty but mentally ill. The court may refuse to accept a plea of guilty or guilty but mentally ill, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or guilty but mentally ill or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. § RCr 8.09. Conditional plea With the approval of the court a defendant may enter a conditional plea of guilty, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified trial or pretrial motion. A defendant shall be allowed to withdraw such plea upon prevailing on appeal. "Alford" plea North Carolina v. Alford, 400 U.S. 25 (1970),was a case in which the Supreme Court of the United States affirmed that there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty while still protesting his innocence. This type of plea has become known as an Alford plea, differing slightly from the nolo contendere plea in which the defendant agrees to being sentenced for the crime, but does not admit guilt; however, the judgment of conviction entered by the Court will have the same legal effect of a "straight" plea of guilty. TRAFFIC CITATIONS: can carry points assessed on the client's drivers license; Google: Kentucky Driver Point System for a list of points per violation; 601 KAR13:025 EXPUNGEMENTS: not all originally charged felonies nor misdemeanor cases can be expunged after resolution, or when statutorily eligible based on a dismissal; timeframes differ from immediately to 60 days, 2 years or 7 years: seeKRS 431.076, 431.078 and 431.079 A FELONY CONVICTION cannot be expunged J UVENILE COURT CONVICTIONS : don't go away by themselves at age 18; you need to file a petition and order; see KRS 610.330 and "...and felony adjudications are public records and can never be expunged unless there is a diversion agreement with the prosecution at the time the plea is entered. There is no exception to this rule." DUI CONVICTIONS affect future DUI charge penalties within 5 years; affect automobile insurance rates and premiums, loss of drivers license, felony enhancement for 4th offense: see KRS 189A.010 Some SEX OFFENSES carry registration as a sex offender; see KRS 17.510 "Almost all sex offenses carry a registration requirement, and the period of time a person must be registered has increased with new legislation every time the law has been amended. Frequently, lifetime registration is required. The statutes are written so that if a person must register, several other prohibitions are triggered: living near schools, childcare centers, etc, and the inability to have any social networking accounts, among other things." Courts can order HIV testing: KRS 510.320; give a DNA sample Some DRUG OFFENSES can be used in the future as a subsequent offender: see § 218A.010. Definitions for chapter (41) "Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter; PFO I and PFO II statues increase the penalties: see KRS § 532.080. Persistent felony offender sentencing if your client has prior felony conviction(s); or if your client is currently charged with a felony Class D Felony PRETRIAL DIVERSION Program affects the client for up to 5 years until Dismissed-Diverted Order is entered if a background check is performed while in diversion § RCr 8.04. Pretrial diversion Chapter 533. PROBATION AND CONDITIONAL DISCHARGE Pretrial Diversion Program: (§§ 533.250 - 533.262) Beware of WAIVERS of appeal and waiver of ability to assert ineffective assistance of counsel in the plea agreement : Commonwealth Of Kentucky, Supreme Court of Kentucky, 2013-SC-270: United States Of America v. Kentucky Bar Association: pending PROBATION: Some crimes cannot be probated: see § 532.045. Persons prohibited from probation or postincarceration supervision - Procedure when probation or postincarceration supervision not prohibited; § 532.047. Nonavailability of probation or suspension of sentence to violent offender - Exception ;§ 533.060. Probation or conditional release - Effect of use of firearm - Other felonies ;§ 533.065. Effect of person wearing body armor and carrying deadly weapon at time of offense ; "violent offenses " in KRS 439.3401 Kentucky Drivers License/CDL: Some offenses carry suspension/revocation of license upon conviction Property Seizure/Forfeiture : see KRS 218A.450, KRS 218A.410, KRS 218A.460, KRS 218A.415(3) Probation and Parole in Kentucky, see: 501 KAR 1:030. Determining parole eligibility. Some felonies carry parole eligibility of 15%, 20%, 50% and 85%; you should also review the standard conditions and terms of a probated sentence with your client ahead of time. Federal Court Considerations Federal Court: Unlike state court, there are presumptions regarding pretrial detention; No parole- most sentences are to serve at 85% service rate; Armed Career Criminal Act; 18 U.S.C. 922(g) gun charges- mandatory minimums; 851 Notices of a prior felony conviction penalties; Mandatory Minimums based on the drug and quantity, economic loss tables in the guidelines; most porno cases-mandatory minimums; Defendants prior criminal record; Criminal History Points- United States Sentencing Commission Guidelines, Title 28 U.S.C. 994 General Considerations Effects on Citizenship and Immigration (ICE); Certain crimes have harsh consequences upon conviction ( felonies, drugs & crimes of moral turpitude): 8 U.S.C. 1227Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010),130 S.Ct. 1473, 176 L.Ed.2d 284 IMPACT ON: Student Loans Housing, Public Benefits Programs Possession ofFirearms (State and Federal): KRS 527.040 and federal law: 18 U.S.C. 922(g) Occupations and Licenses Civil Rights; Voting: Kentucky Constitution 145(1); Jury Service KRS 29A.080(2) (e); Passport: 22 U.S.C. 2714; holding public office and denial of ABC license Involuntary Termination of Parental Rights, Adoption/ Effects on Family Court and Circuit Court cases as a "convicted felon"; impact on custody proceedings and pending or future lawsuits DVO/EPO cases: prohibitions regarding weapons Current and Future Employment/Background checks/Criminal Record Checks ...................................................................................................................................... Here’s a good article from the ABA journal on a recent SCOTUS opinion which expanded what qualifies as “domestic violence” for purposes of losing the right to own a gun under federal law. United States v. Castleman, No. 12-1371, decided March 26, 2014: http://www.abajournal.com/news/article/scotus_gives_expansive_meaning_to_physical_force_in_interpreting_domestic-v/ And here’s a link to the ABA website addressing collateral consequences nationwide: http://www.abacollateralconsequences.org/
Industry Group(s): ATTORNEY AT LAW MAGAZINE, MAY-JUNE 2014
LITIGATION TIPS - (2014)
Unfortunately, the number of criminal jury trials in the state of Kentucky has been on the decline for the last nine years. Reproduced is a table which I received from the Kentucky Supreme Court at a recent presentation by Chief Justice Minton. Nevertheless, as litigators, we all should prepare each case as though it was going to be resolved by a jury. Reproduced below is an excellent list of objections I received during a presentation after Kentucky adopted the Kentucky Rules of Evidence on July 1, 1992. Each litigator should copy this “cheat sheet” and bring it to court so that it is available during your litigation (should you want to lodge an objection with a basis other than “ouch” or “that hurts”). Good luck! ************************************************************** Kentucky Evidentiary Objections Your objection to evidence must be timely and specific. If not, your objection may be waived (Rule 103). Make your objection succinctly and in a clear, firm voice. EXAMPLES: “Objection, Your Honor, the question calls for hearsay.” “Objection, leading.” While you generally voice your objection in front of the jury, do not argue your objection in front of the jury. If argument is required, request permission to approach the bench, then present your argument. Use the Kentucky Rules of Evidence to bolster your argument. Below is a list of most of the common objections, a brief explanation, and authority for the objection based on the Kentucky Rules of Evidence. ************************************************************* 1. Ambiguous – Confusing question that is capable of being understood in more than one sense. Rule 611(a). 2. Argumentative – (1) Counsel’s question is really argument to the jury in guise of a question (Example: Counsel summarizes facts, states conclusion, and demands witness agree with conclusion); or (2) excessive quibbling with witness. Rule 611(a). 3. Asked and Answered – Unfair to allow counsel to emphasize evidence through repetition. Greater leeway on cross-examination, however. Rule 611(a). 4. Assumes a Fact Not in Evidence – Fact not testified to contained in the question. Rule 611(a). 5. Authentication Lacking – Proof must be offered that the exhibit is in fact what it is claimed to be. Rule 901(a). 6. Best Evidence Rule – If rule applies, original document must be offered or its absence accounted for. If contents of document are to be proved, rule usually applies. Rule 1002. 7. Beyond Scope of Direct – Rules of Evidence allow cross-exam on any relevant matter, including credibility, however, judge has discretion to limit such questions. An objection may prompt judge to exercise this discretion. Rule 611(b). 8. Compound – More than one question contained in the question by counsel. Rule 611(a). 9. Conclusion – Except for expert, witness must testify to facts within personal knowledge; conclusions are for the jury – and counsel during closing argument. Rule 602; 701. 10. Confusing and Unintelligible – Unfamiliar words, disjointed phrases, or confusing evidence. Rule 611(a). 11. Counsel Testifying – Counsel is making a statement instead of asking a question. Rule 603. 12. Cumulative – Judge has discretion to control repetitive evidence. Repeated presentation of the same evidence by exhibits or by more witnesses is unfair and wastes time. Rule 611(a). 13. Foundation Lacking – No proper foundation for testimony or exhibit. (Example: Offer of “recorded recollection” without showing failure of memory; similar to objection for lack of authentication or personal knowledge.) Rule 602; 901(a). 14. Hearsay (question) – The answer would elicit hearsay, and no exception has been shown. Rule 802. Hearsay (answer) – Question did not call for hearsay, but witness gave it anyway. Consider making a motion to strike and asking judge to instruct jury to disregard the response. Rule 802. 15. Impeachment by Improper Means – Methods of impeachment are limited and specific. Rules 608-610. 16. “Improper” – When you are sure the question is improper, but cannot think of the correct basis for an objection, try “Objection, Your Honor, improper question.” Judge may know proper basis and sustain your objection, and if the judge asks for your specific basis, you have gained time to think about it. To be used very infrequently. Rule 103( c); 611. 17. Improper Characterization – The question or response has characterized a person or conduct with unwarranted suggestive, argumentative, or impertinent language. (Example: “He looked like a crook.”) Rules 404-405. 18. Incompetent Witness – Lack of qualification such as oath or mental capacity. Also applies if judge or juror is called as a witness. Rule 601-606. 19. Irrelevant – Would not tend to make any fact that is of consequence more probable or less probable. Motion to strike may be appropriate. Rule 402. 20. Leading – Form of question tends to suggest answer. (Permitted, of course, on cross-examination). Rule 611 (c ). 21. Misquoting Witness (or Misstating Evidence) – Counsel’s question misstates prior testimony of witness. Similar to objection based on assuming fact not in evidence. Rule 103 (c ); 611(a). 22. Narrative – Question is so broad or covers such a large time period it would allow witness to ramble and possibly present hearsay, irrelevant or incompetent evidence. Judge has broad discretion in this matter, however. Rule 611(a). 23. Opinion – Lay opinion or inference which is beyond the scope permitted by Rule 701; personal knowledge lacking; or expert witness has not been qualified as such. Rule 701; 702. 24. Prejudice Outweighs Probative Value – At the bench, out of the jury’s hearing, argue that “the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” May apply to exhibits as well as testimony. (Don’t let the jury hear you say that the evidence is prejudicial–they may be impressed.) Rule 403. 25. Privileged – Answer would violate valid privilege (lawyer-client, husband-wife, clergyman, etc.) Rule 501-508. 26. Speculation and Conjecture – Question requires witness who lacks personal knowledge to guess. Rule 602. 27. Unresponsive – Answer includes testimony not called for by the question. Especially applicable to voluntary response by hostile witness. Note: An objection based solely on this ground is generally deemed appropriate only if made by the examining attorney; therefore, opposing counsel should state some additional basis for the objection. Rule 103 (c ); 611(a).
Industry Group(s): ATTORNEY AT LAW MAGAZINE, JAN./FEB. 2014
GREATER METRO LOUISVILLE ATTORNEY AT LAW MAGAZINE - (2011)
Attorney Mascagni wrote a series of three articles on Legal Ethics that were published in Attorney At Law magazine in 2011, 2013 and 2014.
Attorney – Client Sexual Relations: - (2011)
ATTORNEY AT LAW MAGAZINE OCTOBER 2011 ETHICS ARTICLE BY FRANK MASCAGNI III Attorney – Client Sexual Relations: Now Governed by the Kentucky Rules of Professional Responsibility The Supreme Court Rules Effective July 15, 2009, the Supreme Court of Kentucky enacted two new rules in the Conflict of Interest sections dealing with sexual relations with a client. SCR 3.130(1.7)(12) now states: “A lawyer is prohibited from engaging in sexual relationships with a client, unless the sexual relationship pre-dates the formation of the client-lawyer relationship. See Rule 1.8(j).” SCR 3.130(1.8)(j) now states: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them before the client-lawyer relationship commenced.” Since these rules were enacted effective July 15, 2009, there have not been any reported decisions in the Commonwealth of Kentucky under these new rules. However, there are three reported published opinions under the old rules dealing with the subject matter. Kentucky Supreme Court Published Opinions 1999 - 2006 Kentucky Bar Association v. Belker, 997 SW2d 470 (Ky. 1999). This was a well-publicized opinion involving a Louisville, Kentucky lawyer, Norman L. Belker. In June of 1996, two former clients filed Bar Complaints alleging improper sexual contact with the attorney. The attorney was a Plaintiff’s personal injury lawyer and allegedly conducted an examination of the client in his office. Nine more Complaints followed in the next six months. Four former clients filed a civil lawsuit against the attorney in August 1996. The civil lawsuit was settled on the eve of trial in December 1997. As part of the settlement, the attorney was required to withdraw his responses to all pending Bar Complaints. The Jefferson Circuit Court on December 14, 1998, directed the attorney to withdraw his answers to the Inquiry Tribunal charges. The lawyer appealed the Order to the Court of Appeal, which was denied. The Board of Governors reviewed all of the evidence and found the attorney had committed seventeen violations of Disciplinary Rules, dating back to the 1970s by the fondling and touching of the complainants where the contact served only to gratify his own interests to the detriment of the psychological well-being of his clients. The Board recommended permanent disbarment. The Kentucky Supreme Court Ordered the attorney permanent disbarred from the practice of law in the Commonwealth of Kentucky in this reported opinion. Bezold v. Kentucky Bar Association, 134 SW3d 556 (Ky. 2004). Attorney Bezold received a public reprimand against him by the Supreme Court of Kentucky in this reported opinion. The attorney became romantically involved with his client in his representation of her in a divorcecase. His client also worked for him. The attorney admitted a violation of old Rule SCR 3.130-1.7(b) and asked the Court to issue a public reprimand and the KBA had no objection. Kentucky Bar Association v. Martin, 205 SW3d 210 (Ky. 2006). The Board of Governors of the KBA recommended that attorney Martin be suspended from the practice of law in Kentucky for two years with 181 days to serve and the remainder probated upon reinstatement with certain conditions. The attorney was convicted for the sexual assault of one of his female employees in 1999. His employee reported he made inappropriate and unwanted sexual comments to her and forced her hand into his pants and against his penis. The attorney admitted his inappropriate conduct. He entered a plea agreement to a charge of Third Degree Sexual Assault, a Class B Misdemeanor, with a Judgment of Conviction on January 24, 2001. In a second disciplinary case, the attorney was charged with a sexual assault of a former client on April 27, 2001. While in the lawyer’s office, he exposed his genitals and began masturbating in her presence. He placed his genitals against her. He fondled, embraced and kissed the woman. The attorney acknowledged he had sexual contact with the woman, however, claims the encounter was consensual, although he admitted it was ethically inappropriate. He entered a North Carolina v. Alford, 400 US 25 (1970) plea (essentially maintaining his innocence but allowing a Judgment of Conviction to be entered against him) to Third Degree Sexual Abuse and received a probated jail sentence. The Supreme Court of Kentucky, however, ordered that the attorney be suspended for two years effective the date of the entry of this Order of November 22, 2006, and his reinstatement is conditioned upon his continued good faith participation in appropriate psychological and/or psychiatric treatment for his diagnosed mental conditions. Should he be reinstated, he would be subjected to additional requirements related to continued treatment and in-office safeguards and monitoring by the KBA recommended by the Character and Fitness Committee. KBA Disciplinary Statistics According to the KBA, there were sixty-nine disciplinary files opened during the 2009-2010 Fiscal Year under Rules 1.7-1.9, the Conflict of Interest section. I have been advised that these two new rules have not generated any significant number of complaints over the last two years. Additional Considerations Other Than Your Retention of Your Bar License I read an interesting article in the TRIAL Magazine, August 1999, entitled “Sex and the Law”, by authors Michael A. Patterson, Edward J. Walters Jr. and Andrée M. Braud. They point out that attorneys are in a position of power and most clients are vulnerable. The attorney, obviously, is in a superior position in an attorney-client relationship. “The attorney who succumbs to a sexual encounter during representation risks financial, professional and personal destruction.” They point out the lawyer has other exposures by way of civil liability for sexual misconduct with a client: claims based on negligence, civil battery, deceit, intentional infliction of emotional distress, legal malpractice, breach of fiduciary duties, negligent infliction of emotional distress (a controversial legal tort), etc. The lawyer would obviously be obligated to report a lawsuit to his legal malpractice carrier. Additionally, the lawyer opens himself up to a claim of sexual harassment and potentially subjected to a criminal sexual charge under the Kentucky Penal Code. All lawyers have to be careful in their relationships with their clients. Most all legal articles on this subject matter caution against having a sexual relationship with a client for obvious reasons. There are numerous articles cautioning attorneys in the making of improper sexual remarks, unwanted sexual advances, unwanted touching, the taking of nude photographs of a client under pretext, etc. The Risks: the client’s case, your job, your marriage, your assets, your ability to practice law, and potentially your freedom There is obviously a dangerous mixture of sexuality and power that potentially could develop between attorneys and their clients. All lawyers must always remember that they serve in a counseling relationship and in a position of trust. We have a moral, legal, and ethical responsibility to act in the best interests of our clients. All lawyers, male and female, would be well-advised not to put themselves in a position of being exposed to any claim by a client that they took advantage of the client or were less than competent or diligent in the representation because they were distracted by a sexual relation with a client. Caveat emptor: Warning to all to be careful.
Industry Group(s): ATTORNEY AT LAW MAGAZINE, OCTOBER 2011
ATTORNEY AT LAW MAGAZINE JULY 2011 - (2011)
Author of an article for the July 2011 monthly magazine of Greater Louisville Metro Edition of Attorney At Law Magazine titled : "A Real Oxymoron: The Honest Lawyer". Can be read online at www.targetmarketmediallc.com July, 2011 edition of the monthly magazine================================================================== Title: A Real Oxymoron: The Honest Lawyer Author: Frank Mascagni, III=============================== Every attorney will make mistakes, but very few will be sued by their client. All too often the difference between an error being made resulting in a lawsuit or a Complaint being filed with the Kentucky Bar Association (KBA) has simply to do with the strength of the attorney-client relationship that exists between you and your client. To avoid being named as a Defendant in a lawsuit or being named as a Respondent in a Complaint, make sure that your conduct is consistent in the following areas: Have a clear and fair written fee agreement as soon as possible after your initial agreement to accept the case. Within the attorney-client contract or by separate letter, be sure to confirm the scope of your representation and the limits of your employment. Bill on a consistent periodic basis for your fee and expenses incurred in the litigation or the representation. Always give real expectations of the case and the progress of the case to the client. Show an interest in the client as a person and treat them respectfully Return your business telephone calls promptly and treat the caller with courtesy. Make it a habit to be punctual for appointments and court appearances and if you are personally unavailable be sure that the client knows ahead of time that someone will be acting in your stead and the scope of their duties on that occasion. Avoid taking telephone calls during office conferences and discourage interruptions. Always copy your client with significant correspondence and pleadings During the term of the attorney-client relationship always encourage the client to share the decision making with you in the handling of their case. Your attitude each day toward the practice of law is a reflection of you that should be closely guarded. Learn to enjoy the practice of law and relish good clients and the satisfaction of a good work ethic and the results you obtain. Appreciate those rare "thank yous" that we receive. It is equally important that you quickly rid yourself of bad and bothersome clients and their phone calls. If you do not enjoy the relationship with the client or if it is a bad case, professionally withdraw from representation and either dissuade the client from prosecuting the case or refer it to other counsel. These are the very cases and clients that adversely affect your attitude which spills over to your enjoyment of your other clients and cases. You have to maintain some degree of control of your life and caseload. Don’t set unrealistic expectations of yourself nor convey unrealistic expectations to your client. Your attitude about the practice of law is directly related to the amount of money you made that day. Isn’t it amazing that when you are financially rewarded for your efforts, your attitude spills over to the balance of the day and sometimes for the balance of several weeks? Don’t be so quick to deposit your money in the bank. Keep it in your pocket for a few days before depositing it and it will directly change your attitude when a persistent or annoying client interrupts you. You will find that their annoyance and persistence is not as offensive on those days when you have received appropriate remuneration for your efforts. When you look in the mirror in the morning it is important that you are anxious to get to work because you enjoy the practice of law. Equally important is that prior to going to sleep at night you can look at yourself in the mirror and know that you have done the best for your client and that you have not compromised their position or your personal ethics. We deal in a work place where settlements and compromises are the norm. Be absolutely certain that you don’t get into the gray areas of professional ethics. You will quickly find, if you have not already done so, that when you are in the gray area and are tempted by economic gain it is easy to rationalize your position and the outcome of litigation or the result in the case. Problems arise when you remain in the gray area too long, your perception of the demarcation between the black and white lines become burred. Don’t compromise your values for a client or for money. You should be motivated by your continued search for truth and honesty as Diogenes, the Greek philosopher, rather than the amassing of a collection of green and white photographs of dead presidents in your drawer. ============================How to Survive the Practice of Law and Retain Your Integrity Your personal and professional reputation is the only true marketable asset you possess. (Don’t lie cheat, or steal). The practice of law is a business – don’t take it personally. (Retain your objectivity and play fair). The practice of law is stressful enough; personally attacking your opponent is not only unwise but will shorten your professional and personal life. Never put he crusade ahead of the client. You are hired by the client o give advice and direction. Don’t sacrifice his or her case for your personal goals, aspirations, or retaliations. If you don’t like the client or the case, you will probably neglect it or malpractice it—refer it out. Don’t play fast and loose with your opponent, the Judge, or in your pleadings. Honestly answer the discovery and pre-trial motions and don’t hedge and compromise your integrity. Remember when you called other lawyers to get their assessment of your opponent’s practice of a case? Your new opponents are now seeking knowledge as to your reputation in the legal community as to whether or not you are honest and straightforward or dishonest, willing to cut corners, and willing to mislead the Court and your opponent. Greed will destroy you! Don’t pad your hours, don’t duplicate energies, don’t file unnecessary motions, and don’t string out the case. Don’t compromise your personal and professional ethics. Don’t let others who have an interest in the case or who are paying the freight distract you—your loyalties are to your client and your client alone. Protect yourself: Document your actions and accounts receivable, maintain a good working file, copy significant correspondence to your client, and keep a tickler system for deadlines. If you are unavailable, have your secretary or associate keep the client advised. Your secretary, receptionist, associates, and office environment are all reflections of you. Be cognizant of their impact and importance on the perception by the client and others. Be appreciative of your staff and of a returned phone call. =============================Photo Credit: By Anonymous (Germany, 17th century, by a member of the Tischbein family according to an old label) (Nagel Auktionen http://www.auction.de) [Public domain], via Wikimedia Commons Photo caption : When people asked Diogenes – as he knew they would – why he carried a lantern, he answered, "I am seeking an honest man." =========================== Frank Mascagni, III has been practicing criminal law for over 34 years in Louisville, KY and is recognized by Best Lawyers in America in the area of Criminal Defense. He can be reached at (502) 583-2831.
‘Mr. Pink’ Tells All In New Book: ================================================================= Attorney Frank Mascagni, III represented one of the four charged co-defendants after their arrests following a theft of some rare books on December 17, 2004 from the campus library of Transylvania University. The case was prosecuted in Federal Court and all four men settled the case by a negotiated plea agreement before trial. One of the co-defendants, Chas Allen, recently released a book about his role in the heist. A review of the book follows: ========================================================================== December 7, 2010 by Erin Brock Staff, The Rambler, Transylvania University's Student Newspaper: ******************************** One of the most notorious events in the long history of both Transylvania University and Lexington, Ky., as well as one of the FBI’s most significant art thefts, has been brought back into the spotlight. Brothers Charles (left) and Blake (right) Allen share a moment of brotherly bonding despite Charles’ 87-month incarceration. On Dec. 17, 2004, three students enrolled at the University of Kentucky and one Transy student stole multiple rare books from the special collections library located in the campus library. One of the perpetrators, Charles (Chas) Allen, has recently released a book about his role in the heist. “Mr. Pink: The Inside Story of the Transylvania Book Heist” offers up Chas Allen’s personal take on what happened on that December day, as well as the events which led up to the heist. Of the four who were convicted of the theft, Allen is the only one that has remained silent about the case — until now. “Chas really just wanted people to know his side of the story, so they could learn from his mistakes,” said Blake Allen, Chas’ younger brother. Chas Allen, Eric Borsuk, Warren Lipka and Spencer Reinhard, the one of the group who was a Transy student and member of the soccer team, scheduled an appointment to see the rare books and bolted with some of the collection. Among these were a set of medical dictionaries that had once belonged to President Thomas Jefferson and were published around 1500, a collection of drawings and a short text by John James Audubon written before 1850, a first edition of Charles Darwin’s “On the Origin of Species” published in 1859 and an illuminated manuscript dated circa 1425. Soon, the group tried to sell the books through the famous New York auction house Christie’s, but they were caught a few months afterward. The authorities were able to trace the books back to the group through a phone number, a chain of e-mails and security camera footage. Blake and his younger sister Sydney helped to compile their brother’s writings into a manuscript to be self-published and are now working on publicizing the book in different ways. “Right now we are spreading the word locally through the local media outlets and just through word of mouth through friends and family. Also, the local bookstores have been doing a great job of getting the book to the community,” Allen said. “We also have the webpage on the back of the book and have been in contact with an agent out of Louisville (Ky.) to push it nationwide.” The official site of the book, http://whoismrpink.com, contains a blog which Allen updates with news about the book release as well as the tour of colleges. To date, Western Kentucky University and Miami University of Ohio have been visited. “As for the college tour, my roommates and I are trying to visit and promote the book at all of the colleges where our friends go to, Auburn (University), Ole Miss (the University of Mississippi), LSU (Louisiana State University), (the University of) Georgia, (the University of) Alabama. We are also trying to visit (the University of) Arizona, (the University of) South Carolina and SMU (Southern Methodist University), but we would love to come to Transy and set something up and spread the word because it is a huge piece of history for that campus especially,” Allen said. The book is a first-person narrative that tells the story of Chas Allen’s life during his first two years of college. Most characters in the book are presented under the aliases they borrowed from the movie “Reservoir Dogs,” but Chas’s brother Blake appears as himself. Allen was 14 and 15 years old during the time that the book portrays. “It was who I was at the time; it just reminds me of the good stories that I had with my older brother outside of the prison setting,” said Allen. Chas Allen, who was 20 at the time of the heist, is being held at the Federal Medical Center just outside Lexington, Ky. He has served approximately five years of his 87-month sentence to date. He is projected to be released in May 2012 as a result of good behavior. “My thoughts about my brother have never changed; I will always love and support him no matter what happens in our lives,” Allen said. “Even though he made a mistake I have completely supported him through this because I know that he would do the same for me.” The release of this book brings up some memories within the Transy community. Jack Girard, the department chair for fine arts, was Spencer Reinhard’s academic adviser. “I don’t think a tell-all book will generate any change in perception … long- or short-term,” Girard said. “I think the truth is these were privileged kids of upper-middle-class economic means who thought they were ‘smarter than the average bear.’ … The real truth — the scenario, however, … reeked of self-indulgence and gross arrogance … among other things. In retrospect … it was, and (in its retelling) is, a comedy of errors. And I believe an independent film production group is now looking at the story in that very light.” ********************************Copies of “Mr. Pink” are available at the following local bookstores: Joseph-Beth Booksellers, Kennedy’s Bookstore, Black Swan Books, Morris Book Shop and Reincarnated Books. They can also be found at Ricardo’s Bar and Grill in Versailles, Ky.
Industry Group(s): UNITED STATES VS. SPENCER REINHARD
A new book was recently published: Prosecutorial Accountability: How the Courts and Legislature Protect Prosecutors from Accountability for Violations of Laws, Ethical Rules & Citizen's Rights written by Judge Stan Billingsley (Ret.). I received my copy on October 5, 2009 and was honored to write a Preface to the book. A copy of the front and back covers of the 274 page book with Preface can be seen by clicking the link below under the RESUME/CV section.
Industry Group(s): Criminal Defense Litigation
TAKE CARE OF YOUR REPUTATION, IT'S YOUR MOST VALUABLE ASSET
****************************************************************************STATEWIDE ARTICLE ON ETHICS I WROTE FOR THE SEPTEMBER 2011 EDITION OF ATTORNEY AT LAW MAGAZINE, GREATER METRO LOUISVILLE: Take Care of Your Reputation It’s Your Most Valuable Asset By Frank Mascagni, III =========================================================TEN COMMANDMENTS FOR LAWYERS I. Have a clear understanding of why you are being retained and by whom. II. Have a clear written understanding as to the fee arrangement and fee division. III. Answer your phone calls promptly. IV. Keep your clients informed. V. Treat your clients with dignity and courtesy. VI. If you say you are going to do something, do it. VII. Never lie to a client. VIII. Use EXTREME CAUTION in business dealings with clients. IX. Don’t become amorous with clients. X. Have an Escrow account and Attorney account and know when and how to use each. *********************************As lawyers, whether you practice civil or criminal law, it is imperative we understand our roles as litigators, which is sometimes misunderstood – even by counsel. As practitioners of law, whether civil or criminal, we both play an important part in making certain that the guarantees of our State and Federal Constitution, their laws and their Bill of Rights protect everyone. Whether you negotiate or litigate, your role is essential to assuring a positive outcome for your client. We enjoy greater freedom in the United States than in any other society in the world. Therefore, vigorous and fair treatment to those involved in a legal proceeding is essential to an ordered society. We enjoy greater freedom in the United States than in any other society in the world. In discussing general considerations for practitioners of law, we must first understand the system and our roles. Equally important to the understanding of our roles is the understanding of the limitations of your role. Traditionally, attorneys have been stereotyped as creatures whose job is to get his or her client off or secure a judgment at all costs. Equally as untrue is the stereotype of the prosecutor or the plaintiff’s lawyer whose job it is to get a conviction or judgment at all costs. Both of these stereotypes are false and if you practice law this way, you will certainly shorten your personal and professional life. Whether you practice civil or criminal law, you don’t want to have your reputation tarnished, neglect or malpractice the case, get sued by a disgruntled client, or be subjected to a claim of ineffective assistance of counsel, or accused of professional misconduct. Take care of your reputation, it’s your most valuable asset, or you run the grave risk of breaching the cannons of ethics and facing the ethics Tribunal with a violation of unethical behavior. While practicing the case, don’t forget to communicate with your client. Problems will arise if the client feels neglected, slighted, disrespected or forgotten, while you are “fighting the good fight” on their behalf. ================================================================ Here’s WHY You Take Care of Your Reputation “What we’ve got here… is failure to communicate.” (A famous line from the 1967 film Cool Hand Luke. Spoken by The Captain, the imperious prison warden played by Strother Martin.) ******************************************The total number of formal Complaints filed against attorneys has been on the increase for the last several years. For the fiscal year 2009-2010, there were a total of 1,306 “disciplinary files” closed by the Kentucky Bar Association. 928 were dismissed, either by the Inquiry Commission or pursuant to SCR 3.160(3), which provides an informal diversion method for addressing less serious violations. Private admonitions were the result in 52 complaint cases. The major areas of complaint were: • Communications……………349 • Diligence……………………….331 • Client Property………….…..202 • Fees………………………….… 119 • Competence…………………..117 Total: 1,118 The balance of the Complaints were disposed of: • 74 Supreme Court Renditions (disbarment, suspension, public reprimand or dismissal) • 252 Cases were procedurally insufficient and returned to the Complainant For the last several years there has been in excess of 1,000 Complaints filed each year with the Kentucky Bar Association with a current Bar Membership of over 16,000 KBA members. It is painfully obvious that many lawyers are not versed in the art/ skill of communication / client public relations. Practicing attorneys need to pay more attention to their phone calls received, client letters received and conversations with a client in person at their office. It needs to be clearly explained to the client that there will be times where there will be no activity in the case as the case progresses. The lawyer needs to explain his/her procedure (in person and in writing) in responding to phone calls, letters and significant events as the case unfolds. The client needs to understand that there are always open lines of communication through the lawyer’s secretary, receptionist, law clerk, associates or assigned office personnel when he/she is unavailable. The lawyer needs to develop form letters and/or cover letters to send to his/her clients on a regular basis keeping the client constantly informed as to the progress being made in the case. Clients get anxious when they don’t receive an immediate returned phone call or reply to a letter they wrote to the lawyer. The vast majority of all KBA complaints begin with a claim of the lack of communication with the lawyer and then address other grievances (diligence, competence, etc.). It is the lawyer’s job to keep his/her client informed each step along the way. This communication will certainly help the attorney-client relationship and keep the lawyer from being named as a Respondent in an ethical Complaint. *********************************************************The rules to avoid a Bar complaint are really quite simple. Perhaps Coach John Wooden’s much quoted views will shed some light on the topic: Coach Wooden's "Two Sets of Threes" written by his son, John Wooden: "My father had what he called his 'two sets of threes.' They were direct and simple rules aimed at how he felt we should conduct ourselves in life. The first set was about honesty: 1. Never lie. 2. Never cheat. 3. Never steal. It required no explanation. My brothers and I knew what it meant and that he expected us to abide by it. The second set of threes was about dealing with adversity: 1. Don't whine. 2. Don't complain. 3. Don't make excuses. Some people today may think these are naive or kind of corny. But think a moment about what they mean and who you become if you abide by them. That isn't naive. You don't become corny. Dad's two sets of threes were a compass for me in trying to do the right thing and behaving in a proper manner." - John Wooden *************************************************************************** Frank Mascagni, III has been practicing criminal law for over 34 years in Louisville, KY and is recognized by Best Lawyers in AmericaÒ in the area of Criminal Defense. He can be reached at (502) 583-2831.
Industry Group(s): ATTORNEY AT LAW MAGAZINE, SEPTEMBER 2011
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.