LawReader has read the tea leaves where the Ky. Supreme Court in several recent decisions has overruled actions of the KBA Board of Governors. These recent rulings against KBA findings, to us demonstrates a change in attitude in the trust and deference that the Supreme Court has traditionally given towards the KBA discipline process.
A good argument can be made that the Supreme Court has been sending a message to the KBA, but the KBA and (a majority of) the Board of Governors and the Bar Counsel have all failed to read the tea leaves.
LawReader may be wrong, but the further the KBA goes in refusing to protect the rights of lawyers, the less likely the Supreme Court will be to walk the plank with them.
There are troubling issues which are of concern to attorneys across the state.
1. Secrecy policies…they refuse to provide an accounting of their expenditure of dues funds for the hiring of outside counsel.
2. They have not informed the public of their reason for discharging Linda Gosnell.
3. They have had some type of ethics investigation of a former KBA President hidden from view for the last four years. (See Courier-Journal story from 2008).
4. The Angela Ford distribution list being sought by the U.S. Attorney for the last two years has not been publically discussed by the KBA. The public should be informed as to the names of all attorneys who shared $12 million with Angela Ford. Rumors persist that when this list is finally released that it may be highly embarrassing to the KBA. Is the KBA pursuing this issue or are they trying to bury this controversy?
5. The Board of Governors reviewed the decision to fight the John M. Berry, Jr. ACLU federal lawsuit seeking to obtain a ruling on the constitutionality of the SCR Rule 3.130 (8.2) which allows the sanction of a lawyer who makes a “truthful but reckless” statement. That decision by the Board of Governors cost the Bar Association over $400,000. This money was spent to enforce a rule that allows the Bar Association to punish truthful political speech of attorneys. We are aware that a minority of Board Members opposed the decision to defend the Berry/ACLU lawsuit. We hope that those Board Members who voted to waste $400,000 and to restrict lawyers free speech rights will explain why they did this.
The following letter from attorney Eric Deters expresses his frustration about yet another attempt to sanction him. Deters is a right leaning radio talk show host and a pretty good lawyer. Some people don’t agree with most of his radio comments (i.e. everyone at LawReader), but we defend his right to express his views. Just because he is a lawyer, doesn’t mean the KBA has any right to silence him by constantly pursuing him for things that are alleged to have occurred ten years ago. Why weren’t these old charges combined with the l9 counts they previously prosecuted him for? He won l5 of l9 counts…so now they trot out new charges. We do not purport to know the facts of these new charges, but the Deters letter raises procedural issues which everyone can evaluate.
Time will reveal whether or not the Supreme Court has been sending the KBA a warning that “they are going too far”. That is the conclusion we make when we read the tea leaves. Apparently the KBA believes they are above reproach, and they haven’t learned anything about several recent rulings against them by the Supreme Court. (Don’t forget the Supreme Court ruling partially rejecting the KBA requests for an increase in dues and the displeasure expressed about the budget of the KBA.
The Supreme Court is a sleeping giant. If the KBA continues to do everything it can to awaken the sleeping giant, they may learn that the Supreme Court created the KBA, the Bar Counsel’s Office, the Board of Governors, and the Court approves their annual budget. The KBA is a mandatory program, but only half of all states have rules which mandate bar membership. If the Supreme Court decided to ditch the current Bar set-up Kentucky Bar Association could be converted to a “voluntary” bar association.
Wikipedia: Mandatory, integrated or unified bar associations
“Some states require membership in the state’s bar association to practice law there. Such an organization is called a mandatory, integrated, or unified bar, and is a type of government-granted monopoly.
They exist at present in a slight majority of U.S. states: Alabama, Alaska, Arizona, California, Florida, Georgia, Idaho, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon,Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington State, West Virginia, Wisconsin, and Wyoming. The other states have “voluntary” associations.
Dear LawReader: Sept. 17, 2012
I wanted to report to you an update on my ongoing ordeal with the office of the Kentucky Bar Counsel and the Kentucky Bar Association Board of Governors. I know you are at the forefront of reform. I’ve read “A Parliament of Owls” which you recently published which focuses on the issues, in novel form, with Bar Counsel and the Board.
On Saturday Sept. 15, 2012, the Board voted on a ten year old matter, to suspend me for 60 days. Of course this is not final. They also voted on a two year matter, 30 days, and apparently that would run concurrent. Since all we received is a call at this point from the Disciplinary Clerk reporting for the Board, its unclear all which they did. They have 45 days to write a written opinion and then I have 30 days to appeal to the Kentucky Supreme Court which of course I will.
Larry Forgy, my legal counsel, and I have decided we have been foolish to think the Bar Counsel and the Board will ever change their attitude towards me regardless what I’m put through. I do whatever they ask (ie. Not speak ill of them; reform my lawsuit practices etc.) and it makes no difference.
Word on the street is the Bar Counsel’s office and the Board are upset with Character and Fitness and the Supreme Court for reinstating me over their objection and they want to show the Court they aren’t going to give up suspending me longer.
The following facts would support this assertion:
1. KBA President Doug Myers and the Board refused my request to have a court reporter and/or videographer present to make a record. This shocked me. The last discipline hearing I had, they refused my videographer because they said I needed to request it in advance. So, this time I requested in advance and they refused it.
Why would the Bar not want a record of the oral argument?
The Supreme Court records oral argument. The Court of Appeals records oral argument.
Why did we want to?
At my reinstatement hearing before the Board, they were tough on Bar Counsel. We were certain we won. Then they voted 13-0 against me. We felt played. We wanted to have a record this time to cite to the Supreme Court. What would be the Board’s motive to overrule this except to avoid scrutiny?
2. They had a Deputy Sheriff guard the meeting! No kidding! One of the Board members came out after the hearing (Richard Hay) and apologized to me for it. Larry Forgy and I have never, in any of these hearings (First Discipline, Character and Fitness, Board Reinstatement, or this one) been nothing but courteous, polite and understated.
So no record and a guard. I assume the guard cost money.
3. The two matters were not involving moral turpitude, a crime, theft, lying or any serious issue. They involved two misstatements in lawsuits. One ten years old. Why is this important? Because they know I went through a federal audit on this and attended 20 hours of ethics in less than two months! I attach a copy of the oral argument paper we prepared and submitted in advance of the hearing. I made these arguments at the hearing.
Anyone who not biased, who would review that, would have to conclude- I have been through enough, have already served 52 more days of suspension in Kentucky and since I took all those ethics courses, we should move on.
I even submitted three documents to prove I’ve learned to be more careful. (also attached.)
Bar Counsel called my ethics courses and these forms irrelevant. Imagine. The 7 hours ethics course ordered by the Kentucky Supreme Court, the 20 hours ordered by Judge Reeves and the 7 hours order by Ohio is not relevant to a ten year old and a two year old misstatement in two lawsuits.
But, it gets better. At the hearing when I pointed out every day I receive pleadings from defense lawyers with false statements in them—i.e. Answers asserting defenses which the lawyer knows don’t apply, they all laughed. Two Board members admitted they did it and would keep doing it! (Now we know why they didn’t want a record.)
4. I’m a victim of the non-application of a double jeopardy. They used these two issues to file the Objection they filed before which caused me to be suspended 52 more days, then turn around and want me suspended on them again! How fair is that? Suspend me twice on same issues.
Also, I told them the Bar Counsel will file another Objection and off I go to the Character and Fitness when nothing changes since I was reinstated June 15, 2012.
The entire purpose of punishment is twofold:
I argued I was punished enough and I took all these ethics courses and I should be given a chance not to commit these same issues. I haven’t. After a review of my oral argument, what do you think?
In light of the Bar Counsel’s and Board’s vindictive treatment of me, Larry Forgy and I have decided we have no choice or at least no reason to do the following:
1. Under the Berry decision, exercise our free speech rights to criticize the Bar Counsel’s office and the Board. They aren’t judges. Regardless, we see no rule which doesn’t allow us to speak out about their rules, policies and conduct and we will.
2. We call on lawyers across the state and rise up and run against all these Board members. We aren’t going to change things without changing the Board.
3. We are going to ask the Supreme Court to decide our action challenging the Objection rule since the Bar Counsel will no doubt use it again on me. A Board member asked Sarah Coker if the Bar Counsel office would use it again. She dodged the question.
4. We have to change the cozy relationships the Board has with the office of Bar Counsel. The prosecutor (Bar Counsel), grand jury (Inquiry Commission) and the jury/judge (Board) appear to all be on the same side.
My matters have all been “presented” to the Board by one of the Board members. When we walked into this hearing, this Board member was sitting right next to Bar Counsel! Also, he and others asked questions in such a mean and nasty way to us. But to Bar Counsel, they ask in great deference. It’s so unfair.
5. We are going to file another original action in the Kentucky Supreme Court to challenge all which we believe is unconstitutional. We also are going to challenge the silence the Board has maintained on Linda Gosnell’s firing and the attorney’s fees paid to outside counsel. The lawyer dues from the Kentucky lawyers have been mismanaged by the Board and Bar Counsel. The dues could be reduced if they were not.
Another point of amusement is it’s been nearly a year and the Board hasn’t been able to find and name new Bar Counsel. A year!
A final thought on how it’s clear no matter what I do, Bar Counsel and the Board will not give up in the pursuit of me.
Their big issue before, including in reinstatement, was my “lack of remorse.”
I would suggest that the Board has neglected to consider the Alford Plea philosophy, where a defendant is permitted to admit there is sufficient evidence to convict, but they are still allowed to maintain their innocence. The Bar Counsel argument on “contriteness” provides no room for a person to maintain their innocence. There is no rule which requires an attorney to be “contrite” in such matters.
As you can see from my statement I expressed remorse for the mistakes. It meant nothing. I feel naïve that I could convince them to have some humanity. Look at all the hell I went through with the last suspension. What was their response? “We don’t care.”
The Story of Prometheus
Prometheus was the son of a Titan who tricked Zeus. To punish him, Zeus had his arms and legs staked to the ground. A vulture pecked at his liver every day. At night, the liver regenerated so Prometheus was pecked for eternity, but never killed. Hercules would later kill the bird.
I told this story to the Board and asked them to kill the “bird” pecking at me. Instead, I’ll have to endure more pecking until the Supreme Court hopefully sends a message to them they will listen too.
I have no idea how the Court will rule. However, I’m hopeful based upon the story I’ve outlined here the Court will show the same wisdom and fairness as they did on June 15.
Eric C. Deters
Summary of Oral Argument
1. The two matters today were used by Bar Counsel (along with several others) to suspend me an extra 52 days by their Objection to my automatic reinstatement after 61 days. I was suspended February 23. I was to return April 25. I was not reinstated until June 15, 2012. Therefore, I’ve served 52 more days than ordered by the Supreme Court.
Plus, most of the nine matters they used to suspend me 52 days longer were dismissed. These two and one other remain. It too is dated nearly ten years and is still before the Supreme Court.
On the two matters today, they want to suspend me 60 days on one and 30 on the other. However, on the 30, Bar Counsel had asked for only a public reprimand from the Trial Commissioner. Now they want 30 days. These trial commissioners do not have the full picture and context of my discipline history in the context of the Character and Fitness report, Supreme Court ruling and audit. This Board, Bar Counsel and the Supreme Court do.
2. Therefore, I was suspended 61 days on the prior matters. Plus an additional 52 days. I have served really all but 38 days of the 90 requested. However, should I serve 38 more days? I was also suspended as follows as a direct result of the Kentucky suspension:
A. Extra 45 days in the Eastern District for a total of 61 + 52 + 45 = 158 days. I was also suspended in the Western District, but they reinstated me right away.
B. 90 days in Ohio and the Southern District instead of 61 because of the reinstatement process for Ohio begins after the 61 days.
C. I will be suspended in Florida. This is set for a hearing in October.
D. I fail to understand how it is fair for a lawyer with more than a Kentucky license to be punished more than a lawyer with just a Kentucky license. The Kentucky Bar knows there is reciprocal discipline. Therefore, why shouldn’t knowing there will be more discipline not be factored into the punishment.
E. I went through the Character and Fitness process and the Committee and the Supreme Court (7-0) reinstated me over the objection of Bar Counsel and the Board.
F. If suspended again, Bar Counsel will file an Objection and off I go through the Reinstatement Process again when nothing has changed and there is nothing new since that process. I’ll also be suspended again in Ohio and Florida.
G. I went through the federal audit at my option on the Reeves sanction. I could have just paid the sanctions. This audit addressed my lawsuit filing. (See attached form.) I bet my office is the only law office in Kentucky self imposing filling out such a form.
H. I took the Supreme Court ordered remedial ethics course and test given by the KBA. (7 hours). In irony, I received the reinstatement news before the test and at the end of the seminar. Should I not be given an opportunity to practice these remedial lessons? (See attached the retainer form we use as a result of that seminar. This too was one of the suspending issues I had.) I actually sent out a memorandum to my entire office after the seminar informing them a few things I wanted to put in practice. (See attached.) These are proof I paid attention, listened and took action.
I. I took another 13 hours under the federal audit and the Ohio suspension. (Ohio accepted Kentucky’s suspension, but not their ethics course.)
J. A total of 20 hours of ethics focused CLE were taken from June 15 to August 1, 2012. This is three times what was ordered by Kentucky.
K. I’ve behaved in public and private and I’ve not had any more Rule 11 or sanction issues. (In light of my suspension, I get threatened all the time by lawyers who think they can take advantage of my fear of more bar issues. Should not, “he’s learned a lesson,” be factored in on these two matters? It seems wrong to have a lawyer go through remedial ethics and then not give him credit how he performs after? I missed only two questions on the test and I think I had reason to refute the answer they wanted. At least one of the two was on the issue of a suspended lawyer being a paralegal.)
L. I lost an opportunity to be on the Board of the Ohio Justice Association by my Kentucky suspension. I was asked to be on the Board. Then it was retracted.
M. Character and Fitness recognized the permanent Google stain of my suspension.
N. My lost business is unquantifiable because it’s unknown.
O. Stress. I literally could feel the stress fall off my body for weeks after my reinstatement.
P. On Concept Homes, Justices Cunningham and Scott wanted to grant discretionary review.
Q. On Sanders, Judge Sheehan overruled the Rule 11 Motion and asked us to consider leaving each other alone. We have. While we still are involved in cases, there have been no more public barbs of a personal nature. I believe my Sanders relationship has moved past the past.
R. The Bar Counsel office tried to get attorney fees from litigation. I successfully defended this.
S. The bond issue rule changed during my case.
T. The rule on reinstatement with pending discipline changed based upon my battle.
U. I’ve left alone lawyers, judges, Bar Counsel and the Bar.
V. I’m representing clients and doing my job.
W. The Berry 6th Circuit Decision would apply to the Judge Bates matter for which in part I served a suspension. Under Berry, there would have been no violation.
X. I’ve withheld filing more lawsuit challenges against the Bar including challenging the restriction to quit the Kentucky Bar with pending discipline. I find it remarkable the Bar doesn’t allow you to quit. This can’t be constitutional. I’ve not pushed the pending litigation on the Objection rule since I was reinstated. If suspended again, I will have to because I know Bar Counsel will use it again. I think it is clear they are obsessed with getting me. I want to move on. Bar Counsel rejected our proposal to drop these old charges and I’d dismiss all litigation.
Y. To suspend me again on these matters I believe after all I’ve gone through is not fair. I’m unaware of a single new bar complaint which would reflect misconduct after the Character and Fitness recommendation, Supreme Court ruling and my ethics courses.
This was an issue before. Let me be clear. Despite my belief I did not commit any ethical violation, I admit had I not been negligent or distracted on Concept Homes I would have known by the presuit letter that the LCC was not formed. But, I didn’t read it and ignore it! Also, when I realized it, I acted properly. I also had a public sanction which I paid. On the Sanders matter, I want to admit it may not have been accurate if public knowledge, but under confidential rules it was. Regardless, Bar Counsel only wanted a public reprimand. Also, it really relates again to more of the negligence and distraction of my review of the Complaint prepared by a lawyer in my office which relates again to all which I have already addressed. I express remorse and apologize for a matter concerning facts in a lawsuit not being completely accurate. However, it was sloppy review, not intentional dishonesty. And, it’s all been addressed and corrected. Furthermore on Sanders, the statement in issue related to me, not an attack against him. He was not harmed or incurred any expense at all as a result. On Concept Homes, I had to pay 50% of their awarded attorney fees for the entire matter, for an issue resolved in the first few months of the lawsuit filing. Therefore, they were not harmed or incurred expense as a result. Again, it too was about a LLC not a negative remark about them.