SUPREME COURT OF KENTUCKY
KBA 15674, 15681, 15745, 15859, 16024 & 16795
IN RE: ERIC C. DETERS
KBA MEMBERSHIP NO. 81812
BAR ROSTER ADDRESS: 5247 Madison Place
Independence, Kentucky 41051
* * * * * *
SUPPLEMENTAL ARGUMENT BY COUNSEL
“Fighting for the right is the greatest
sport this world affords.” Theodore Roosevelt
This approach to the Board of Governors is made because a serious injustice is in process. Attorney, Eric Deters is threatened with an extensive suspension of one-hundred eighty days (180) from his profession. This approach is made pro bono.
As this Board also dedicates its time without remuneration, we are all in somewhat the same predicament, facing a serious decision without any benefit or personal gain. You as a Board also face institutional responsibility that will have extended effect on one of Kentucky’s important regulatory organizations. You probably feel a divided interest, to do the right thing, but to be loyal to the institution you are elected to foster, promote and serve. Many, probably this Board included, feel the Bar Association is at a crucial juncture in its disciplinary function.
The great Dr. Otis A. Singletary, long term President of the University of Kentucky, and my mentor, constantly struggled with his Board of Trustees regarding its role in the governance of that institution. In tight places, should the Board support the administration or substitute its own judgment. An example, should the able, but controversial, Harry Caudill, despite some Board Members strong opposition, have been conferred an honorary Doctoral Degree, to which he had been elected by the faculty Senate. Singletary would sternly admonish the Board, in private session assembled, “Look! You have an obligation to support this hired leadership unless you find we are acting egregiously arrant.” Part of Roget’s definition of egregious includes: flagrant, glaring, rank, gross, obvious, excessive or extreme.
If you find the process and decision in this Deters matter extreme, you must not support the Ethics Disciplinary officials or the Trial Commissioner regardless of your devotion to the Bar. In this system, you are elected to rise above loyalty. Dedication, here, often requires detachment.
Someone once wrote when any two persons always agree it means only one thing; one of them is dispensable. In this system, dedication requires dissent, at times.
It is to state the obvious, that this Board sits, here, in an adjudicatory role. About ten years ago, the prosecutorial function was separated from the Board’s role as a finder of act and the punitive determination agent. There was a reason for this reorganization. Thoughtful oversight! You are expected to sit here in the role of a circuit judge without bias, favor, or preconception; irrespective of your decisions effect on the morale of the Ethics Disciplinary officials or their future effectiveness. You have to set your own standards but they certainly are not that of cheerleader and rubberstamp for the Bar Staff or an off the rails Trial Commissioner.
Hubris and Nemesis
While most agree that the Bar Counsel staff acted admirably in the Phen-Fen matter, and achieved a real victory. Recall, the Greeks felt that what they called Hubris detrimentally follows major victory. That has happened here.
Many questioned the judgment of the Bar Counsel and staff in the Marcus Carey & John Berry, Jr. matters, as “over the top.” Nemesis! The same sentiment applies to the instant case. Nemesis! Many look at the six (6) charges for which Eric Deters is in the dock and observe, the penalty sought for these charges is gross in its severity.
We cannot believe that a productive qualified lawyer has his professional life threatened by these matters where there is no theft of funds, or even any moral turpitude. It appears that some person or persons is excessively punitive toward this man. Perhaps this sentiment is shared by several of the Bar Counsel staff and on this Board. We hope.
To be effective, members of this state Bar should not be hampered by inordinate fear of sanctions, some extraordinarily harsh, from an overzealous Bar Counsel staff.
Nor should attorneys in this state feel compelled to bow down to the Bar Counsel staff when charged, lest they be later drawn and quartered. Here, at first, Mr. Deters refused to accept a thirty day suspension, now he faces a year and a half, plus one day suspension. The Bar Counsel then recommended a sixty day suspension, but Frank Doheny, in his infinite wisdom, recommended a year and a half plus one day thereby assuring, by one day, that re-admission was not automatic. In essence, if you ever want back in you’d better humble yourself. Criminal prosecutors, in the main, are more limber than that. This is wrong. It is egregious.
Ask yourself, however, has the Board often enough stood up to its Ethics Disciplinary officials in the past ten years or has it adopted a quiescent role. If so, what was the purpose of the appeal process? Were the framers of the system simply idling when they designed it?
We cannot believe that a productive qualified lawyer has his professional life threatened by such matters as are pending here. Overrule them!
Frank Dohney Should have Recused
I have known Frank Dohney since the early 1970’s. He speaks like a lawyer, looks like a lawyer and acts like a lawyer. But, so do most of us. He and I were tennis partners at the Louisville Boat Club; he was very competitive and accomplished. We talked, mostly about Louisville and the practice, our cases. In short, we are friends, long since. But anyone who knows Frank Dohney knows that properly provoked he can become judgmental, unctuous and pietistic.
While this in a personal criticism, it must be understood that this entire proceeding is personal, toward my client. Despite Frank Dohney’s dedication to the organized Bar in Louisville and the Kentucky Bar Foundation, he was a bad selection for Trial Commissioner in this matter. Frank Dohney has an advocate’s temperament not a judicial one. And to attack, as Respondent has, Frank Dohney’s objectivity or bias is to declare war; unreasoning, unconditional, and irreconcilable war. During the hearing, which lasted _____days, this was not a replay of Judge Hoffman versus the Chicago 7. It was semi-civil. But in the end Frank Dohney rimrecked Eric Deters, he was extremely harsh on all points.
The crucial facts are clear, during the hearing it was discovered, through testimony that one of Frank Dohney’s partners had taken over a disputed matter that Respondent Deters had previously handled, after some work, for a $1,500 fee; and the Dohney partner finished it for a fee of $25,000. Knowledge of that matter was imputed to Frank Dohney. The matter was, coincidentally, the subject of one of the six complaints here. Deters was charged with an excessive fee.
Upon request, Frank Dohney refused to recuse himself. The more he refused, the more vehement his refusal, the more clear, to my client, was his bias.
In essence, Deters had questioned his conflict of interest, and puzzled directly about the possibility of bias. Frank Dohney’s reaction could be generally described, “Who in the bloody hell do you think you are questioning my integrity.” Then he issued a broadly condemnatory opinion, raised the Bar Counsel’s recommended punishment from a sixty day suspension to a year and a half plus one to teach him a lesson.
Shakespeare said it best “on what meat doth this our Caesar feed.” Whatever else is involved here, I believe, you are first obligated to either condone or disapprove of this conduct by Frank Dohney. Was Mr. Dohney’s conduct egregious and, will condoning this conduct fall into the pattern of the Marcus Carey and John Berry, Jr. cases? Will your decision meet the approval of the vast majority of lawyers and the public, who will look at these charges, and this punishment, as excessive?
THE SICK CHICKEN
No one is his/her right mind would compare the hard charging, aggressive Mr. Deters to a sick chicken but the analogy is apt. Anyone who has ever spent any time around a barnyard and knows that, more than occasionally, the majority of the hens will band against one of the hens and, if it is not removed, peck it to death. This is happening here.
Respondent’s major offense is his success. Jealousy is the most prevalent human emotion. Respondent is becoming a potent force at the Bar in Northern Kentucky. Certainly, he is visible; moreover, he is a blunt, straight speaking celebrity through his constant talk radio opinions, on the powerful 100 thousand watt, WLW radio station in Cincinnati, Ohio. He is a darling of the television media. As a celebrity attorney he is disruptive of the status quo. He draws cases, and, he wins his share. He is active in the public arena. Many of his activities are controversial.
This Board must decide, in view of the serial complaints against Eric Deters whether he is being “pecked to death” by the hens and whether the Ethics Disciplinary officials here at the Bar Association are complicitus. Not only are there six complaints joined in this hearing, there are several others coming over the hill. Is this numerosity, in and of itself, coincidence or suspicious.
The Bar like any organization can become divided and someone can be left out. Then the mischief begins. Woodrow Wilson once wrote something to the effect, that the politics and viciousness of the faculty of Princeton University would defy the understanding of the majority leader of the U.S. Senate. So with lawyers! Certainly, so with some Northern Kentucky lawyers.
Are we witnessing the self- appointed bulls of the Northern Kentucky Bar working in concert with the Bar Counsel and Frank Dohney to regulate legal competition? What’s going on here why all the negativity toward the Respondent? Has he enemies? Are they the complainants? Has been opposed them in Court?
Also, the tri-counties in Northern Kentucky are different than the rest of Kentucky. Having practiced law in Louisville, Lexington and with the Cincinnati Firm of then Frost & Jacobs, I can affirm, the legal struggle is more desperate there. The tri-counties are joined at the hip with Cincinnati a major northern industrial and commercial city. Its mores are different. Moveover, the three counties are different ethnically, temperamentally and socially. There are few Confederates! Southern manners are not the order of the day. Their politics are different and changing. Board members must supply an analysis of this case that differs from that appropriate in Paducah or Bowling Green or even Louisville. I believe there is a lawyer cabal to get Eric Deters. This is not paranoia. They leak all matters concerning him to an interested press. Frank Dohney, who in his long bar service may be a sui generis bosom buddy with many of them. Should you as deciders know who the complainants are? Are they Dohneyites? Are collective professionals interests being protected here or are they private interests. A quick look and these charges look like an aggregated load of crap from angry competitors.
- Judges who are not slandered or lied about, not in open court
on the radio no less.
- Lawyers who are mistakenly defined as “Agent for service of
process.” Is that a slur?
- Retainer fees of $1500 for filing a legal complaint.
Excessive! One wonders if Dinsmore ever charged such an
Also, this Board needs to recall that not all law is practiced above the 10th floor of a high rise office building. Some of it occurs at ground level. This Board of Directors needs to recognize that some lawyers survive in controversy, they do not have corporate firm boxes at the Riverfront sports facilities or in the Yum Center where controversy can be ironed out while enjoying the game with a brew and opponent.
Frank Dohney does not understand either the Northern Kentucky culture nor the problems of the ground level lawyer. He is an elitist in his practice and outlook. So too, perhaps, the Bar Counsel staff.
One has to be tough enough to do kick boxing in a cage to survive in some locales. Deters has done that. One cannot visualize Frank Dohney in that venue.
The Chief Justice Should have Dismissed Frank Dohney
Frank Dohney’s law practice charged $25,000.00 for completing of legal work Eric Deters had agreed to do for $1,500.00. Frank Dohney found Deters fee excessive. Frank Dohney’s law practice charged 16.6 times what Deters charged, yet he was charged with asking for an excessive fee for his services.
At this, Deters filed a Motion for Recusal with the Chief Justice and on two occasions it was returned unhonored.
Dohney refused to step aside, the Chief Justice should have determined, pursuant to KRS 26A.020 which, in pertinent part reads, as follows:
If either party files with the circuit clerk his affidavit that the
Judge will not afford him a fair and partial trial, or will not
impartially decide an application for a change of venue, the
circuit clerk shall at once certify the facts to the Chief Justice
who shall immediately review the facts and determine whether
to designate a regular or retired justice or judge of the Court of
Justice as special judge.
The franchise a lawyer receives, as a member, of the Bar is quite valuable. His reputation now and for posterity is of more value. It determines what his descendants will think of him. Disbarment ruins that. The details are gone, only the punishment remains. Surely, a man of Eric Deters standing deserved better treatment than this.
Eric Deters family has long stood for something in Kentucky. His father, Charles Deters founded the largest law firm in Northern Kentucky, was, for years, counsel to the Catholic Archdiocese of that area and was Governor Bert Combs “man” in Northern Kentucky for four years.
Eric’s grandfather was the editor of one of the local newspapers, while his uncles were major real estate developers. This does not entitle him to special rights, but his civil rights ought to be protected at least as well as the meanest man off the street. They were not.
It is inconceivable that Bar Counsel and the Trial Commissioner can attempt to take Respondent’s livelihood away for greater than eighteen months when his clients, his employees, his wife, his children and his family depend upon him. He represents his clients well and his clients trust him. To suspend Eric Deters creates an unfair hardship on everyone. He committed no treacherous acts. He stole nothing, he injured no one, and he should be acquitted.
Frank Dohney admitted in his Report he wanted to teach Respondent a lesson. Big man, egotist. It’s a remarkable admission. Bar Counsel asked for Respondent to actually serve only a 60 day suspension based on probation and offered 30 days’ earlier. The Trial Commissioner is recommending 181 days, plus one. Based upon the record, Respondent requests the following:
1. Not guilty; or
2. A new hearing before a new Trial Commissioner; or
3. Public reprimand.
(The negative publicity and time, energy and money spent by
Respondent defending these charges, which have no basis in fact,
or law, has punished Respondent far more than he deserves)
4. 30 to 60 days Suspension; or God forbid;
5. 180 day suspension. 181 days does not give Respondent his license back automatically. That in vicious, intemperate and unsustainable.
L. Forgy & Associates, PLLC
Lawrence E. Forgy, Jr. Lawrence E. Forgy, Jr. Esq.
83 C. Michael Davenport Blvd.
Frankfort, KY 40601
Phone (502) 227-3155
Facsimile (502) 227-3159
Counsel for Defendant,
L. Forgy & Associates, PLLC
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was mailed first-class, postage-prepaid, to all of the parties on the following Service List this ______ day of June, 2011:
Lawrence E. Forgy, Jr.
Lawrence E. Forgy
 Not U.S.V. A.L.A. Schechter Poultry Corp., 295 US 495 (1935).