Ex Parte Leo G. Smith, Chief Public Defender, Louisville & Jefferson County Public Defender Corporation And, Elizabeth B. McMahon, Deputy Chief Public Defender, Louisville & Jefferson County Public Defender Corporation

• Court: Kentucky Supreme Court
• Decided: October 20, 2022
• Docket: 2022 SC 0243
• Status: Unknown

Opinion

RENDERED: OCTOBER 20, 2022 TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0243-OA

IN THE SUPREME COURT

EX PARTE LEO G. SMITH, CHIEF PUBLIC PETITIONERS DEFENDER, LOUISVILLE AND JEFFERSON COUNTY PUBLIC DEFENDER CORPORATION; AND ELIZABETH B. MCMAHON, DEPUTY CHIEF PUBLIC DEFENDER, LOUISVILLE AND JEFFERSON COUNTY PUBLIC DEFENDER CORPORATION

OPINION AND ORDER

Under Sections 109, 110, and 116 of the Kentucky Constitution,

Petitioners Leo G. Smith and Elizabeth B. McMahon move for a supervisory

writ interpreting the Rules of the Supreme Court, including the Rules of

Professional Conduct, to determine whether those Rules permit attorneys to be

members of a collective bargaining unit. Because Petitioners have failed to

demonstrate entitlement to a supervisory writ, we deny their Petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Smith and McMahon are supervisory attorneys in the Louisville and

Jefferson County Public Defender Corporation (“the Public Defender’s Officer”).

The Public Defender’s Officer is a non-profit organization rendering legal

services to indigent persons accused of crimes and status offenses in Jefferson

County. On November 5, 2021, a petition was filed with the National Labor

Relations Board (“NLRB”) by the International Brotherhood of Electrical

Workers (“IBEW”), Local 369, to represent non-supervisory attorneys employed

by the Public Defender’s Officer. But on December 2, 2021, Sheila Seadler, a

non-supervisory staff attorney in the Public Defender’s Office filed a petition for

a supervisory writ in this Court raising ethical concerns regarding the effects of

unionization on public defender practice.1 The Public Defender’s Office, acting

through Chief Public Defender Leo G. Smith and Deputy Chief Public Defender

Elizabeth B. McMahon, filed a motion to intervene in that action.

In the meantime, the NLRB proceeded with an election. Most non-

supervisory attorneys employed by the Public Defender Office voted to be

represented by IBEW, Local 369, for the purpose of collective bargaining over

terms and conditions of their employment.

Then, on March 24, 2022, this Court rendered a decision in Seadler v.

International Brotherhood of Electrical Workers, Local 369.2 In Seadler, we held

that “a supervisory writ [was] inappropriate because SCR 3.530 provide[d] the

proper procedural mechanism to place before this Court a question relating to

the interpretation of the Kentucky Rules of Professional Conduct.”3

1 Seadler is not a party to this case. Moreover, IBEW, Local 369, has moved to file a response to the Petition in this action but is similarly not a party to the action. At present, only Petitioners Smith and McMahon are parties in this ex parte proceeding. 2 642 S.W.3d 712 (Ky. 2022). 3 Id. at 714.

2 In response, Petitioners requested a formal ethics opinion from the

Kentucky Bar Association’s Ethics Committee. The Committee declined to

issue a formal opinion in response to Petitioners’ letter. First, the Committee

stated that Petitioners’ letter raised issues—including an individual’s right to

assembly and free speech—that were beyond the purview of the Committee’s

review. Second, the Committee declined to issue an advisory opinion based on

speculative conduct. Third, the Committee concluded that the ethical issues

raised in Petitioners’ letter were confined to the Louisville and Jefferson Public

Defender’s Officer and did not raise issues requiring statewide attention.

Now, Petitioners ask this Court to interpret the Kentucky Rules of

Professional Conduct to address whether attorneys may become members of a

collective bargaining unit.

II. ANALYSIS

“Under [Kentucky Constitution] Section 110(2)(a), this Court has the

power to issue writs necessary to ‘exercise control of the Court of Justice.’”4

Supervisory writs are only available in the Supreme Court and seek to address

“this Court's control over the proper functioning of our courts.”5 The standard

“is very simply whether a majority of this Court believes the circumstances

merit a supervisory writ.”6 But a supervisory writ is an extraordinary remedy

4 Id. at 713 (quoting Ky. Const. § 110). 5 Id. (quoting Commonwealth v. Carman, 455 S.W.3d 916, 923 (Ky. 2015)). 6 Id. (quoting Carman, 455 S.W.3d at 923).

3 that should only be entertained in “well defined and compelling

circumstances.”7

We deny Petitioners’ request for a supervisory writ for two reasons. First,

Petitioners’ request does not present well defined and compelling

circumstances justifying issuance of an extraordinary writ. Second, the ethical

issues raised by Petitioners are not of statewide importance.

The Petition raises speculative ethical issues that attorneys may face if

they become members of a collective bargaining unit. Importantly, the two

Petitioners involved in this case are supervisory attorneys in the Public

Defenders Office, not non-supervisory staff attorneys who may join a collective

bargaining unit. As such, Petitioners have failed to raise an active ethical

controversy that is appropriate for resolution by this Court.

Of course, the ethical issues raised by Petitioners may be compelling in

the sense that they raise interesting, complex, and novel legal issues of first

impression for this Court. But the Petition is based on potential, unspecified

unethical conduct that may arise sometime in the future. As such, Petitioners

have not advanced compelling claims simply because it is unclear that the

unethical conduct complained of will occur.

In fact, the breadth of the issues raised by Petitioners cautions against

issuance of a supervisory writ. Petitioners’ arguments are not limited to

attorneys practicing as public defenders or in the context of criminal defense.

7 Id. (quoting Abernathy v. Nicholson, 899 S.W.2d 85, 88 (Ky. 1995)).

4 Instead, Petitioners contend that it is unethical for any attorney in the

Commonwealth to join a collective bargaining unit. True, Petitioners cite some

rules that may be violated by an attorney’s membership in a collective

bargaining unit. Still, Petitioners do not provide any active unethical situation;

instead, petitioners only advance claims about future or potential ethical issues

caused by attorneys unionizing. To our knowledge, none of the attorneys that

are unionizing and thus potentially engaging in the allegedly unethical conduct

are parties to this action. And no clients of such attorneys, including criminal

defendants, are alleging unethical conduct resulting from an attorney’s

membership in a union. At bottom, answering the expansive legal questions

raised by Petitioners would require this Court to imagine and then resolve

several hypothetical ethical situations.

We understand that this result may seem inequitable since Petitioners

followed our direction in Seadler by first seeking an ethics opinion from the

Kentucky Bar Association Ethics Committee. But a supervisory writ is an

extraordinary remedy, to be granted only in limited situations. And this Court

does not issue advisory opinions.8 Resolving questions regarding potential

ethical issues arising by attorneys joining a collective bargaining unit is a

textbook example of an advisory opinion, especially when none of the attorneys

8 See Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (“It is a fundamental tenet of Kentucky jurisprudence that courts cannot decide matters that have not yet ripened into concrete disputes. Courts are not permitted to render advisory opinions.”) (citations omitted).

5 who may engage in the alleged unethical conduct and no clients affected by

potentially unethical conduct are parties to the action.

Petitioners expressly ask, “when the Ethics Committee . . . chooses not to

issue an informal opinion addressing an attorney’s concerns, what is an

attorney to do?” For one, any individual attorney concerned about the

potential ethical implications of joining or continuing membership in a

collective bargaining unit may seek an opinion from the Kentucky Bar

Association Ethics Committee. While the Ethics Committee declined to issue

an opinion in response to Petitioners’ request, the Committee’s response to

Petitioners left open the possibility that the Committee would address ethical

concerns raised by individual attorneys regarding union membership.

Additionally, the KBA Ethics Hotline is a resource for attorneys to seek prompt

and personal ethical advice.

The issues raised by Petitioners also do not have statewide impact. In

the case at hand, the issues related to attorney membership in collective

bargaining units are limited to a small number of attorneys in Jefferson

County. As such, we are reluctant to render a decision of statewide impact

when the underlying issues only involve a relatively small number of attorneys

practicing in the Commonwealth.

Ultimately, the circumstances in this case are not sufficiently well

defined and compelling to warrant the issuance of a supervisory writ. To be

clear: we decline to issue the requested supervisory writ, but we take no

position on the substantive issues raised by Petitioners.

6 Accordingly, the Court ORDERS that:

1. The Petition for a supervisory writ under Sections 109, 110, and

116 of the Kentucky Constitution is DENIED;

2. International Brotherhood of Electrical Workers, Local 369’s

motion for leave to file a response is DENIED;

3. Petitioner’s motion for leave to file a reply to International

Brotherhood of Electrical Workers, Local 369’s, response is DENIED; and

4. International Brotherhood of Electrical Workers, Local 369’s,

motion for leave to file sur-reply is DENIED.

All sitting. All concur.

ENTERED: October 20, 2022

CHIEF JUSTICE