Eric Deters suspension urged – Trial commissioner Ignores KBA recommendation and seeks 181-day halt to law practice

A Kentucky Bar Association  trial commissioner has recommended that lawyer and WLW-AM (700) radio personality Eric Deters be suspended from the practice of law in Kentucky for 181 days.  The KBA prosecutors had reccommended only a 60 day suspension.  Previously the KBA had offered Deters a 30 day suspension if he admitted the allegations of ethics violations.  He refused to admit guilt and the KBA doubled their request.

Nevertheless the Trial Commissioner who issued the formal recommendation of the KBA, obviously angered at Deters attempts to have him recused, is seeking a l81 day suspension.

Trial Commissioner Frank P. Doheny, a partner in Dinsmore and Shohl law firm in Louisville  wrote in a 21-page report that Deters “engaged in a pattern of conduct that simply stated is ‘sue first, ask questions later’ and ‘say anything I want, because I’m a lawyer and no one is gong to hold me accountable.’ ” Deters said he will fight the recommendation in Doheny’s report, filed Tuesday at the Kentucky Bar Association Office of the Disciplinary Clerk in Frankfort.

“My battle with the Kentucky Bar Association is far from over,” Deters said in a statement released Wednesday. “Frank Doheny, my hearing officer, was supposed to serve as an unbiased one. He is not a judge in ‘real life.’ ” Deters claims Doheny was biased because his law partner was hired by a former client of Deters.  This is the same client  who has filed the complaint against Deters with the bar association.

Deters says that one of the charges involved a case where a client came to his office and paid him $1500 to represent the defendant in a foreclosure action.   Later the client fired Deters and hired a lawyer from the Cincinnati office of Dinsmore and Shohl.   Deters alleges that the client who filed a complaint against him over his fee of $1500 was charged $25,000 by Dinsmore and Shohl.  Yet Deters claims that the issue is over the size of his fee. He claims a bias by the KBA in favor of fees charged by large law firms.

It is not clear from the record if the Dinsmore and Shohl attorney representing the client who fired Deters and then took over representation of the client in the same case, was involved in advising the client to file the ethics complaint against Deters.

While the trial commissioner hearing Deters case admits that his law partner represents the client who filed a complaint against Deters regarding the same case, he refused to recuse himself from hearing Deters case.  Doheny made no defense of the large fee charged by his law partner which was 16.6 times larger than what Deters charged.

 The Code of Judicial Conduct which applies to Trial Commissioners, requires all judicial officers to remove themselves from a case if the appearance of impropriety exists.  A financial interest, “however small” is cited in the Judicial Conduct Code as a basis for recusal. 

 Deters then filed a motion with the Supreme Court seeking an order from the Chief Justice recusing the trial commissioner.

Deters said in court pleadings that the Clerk of the Supreme Court returned his recusal motion and that the Chief Justice refused to even consider it.  He cited a statute that requires the Chief Justice to “immediately consider the facts of a recusal motion”.  

 LawReader has found no rule or statute that gives the Supreme Court Clerk the discretion to refuse to present such a motion to the Chief Justice.   If the Chief Justice didn’t want to grant Deters motion all he had to do was issue a one word order saying “denied”. Recusal is completely at his discretion.  

As a result of the Chief Justice refusing to even hear his recusal motion, Deters sought an injunction in Federal Court against Doheny hearing his case. 

Federal Judge Danny Reeves gave Deters a tongue lashing in court and denied him the requested relief.  He ruled that Deters had not exhausted his state remedies and his motion was interlocutory.  He also chided Deters for joining several KBA officials in their personal capacity in addition to their official capacity. Deters filed his petition for injunctive relief on a Monday and dismissed it a day or two after the denial of his motion.

Judge Reeves personally issued a show cause notice to Deters and is considering a Rule 11 violation.  Federal Civil Rules have a safe harbor provision which protect a lawyer from a Rule 11 sanction if the offending pleading is withdrawn before the opposing party files a petition for Rule 11 sanctions.  However, that exemption does not apply to sua sponte motions by the Judge.  

A reading of the adjective filled formal recommendation by Trial Commissioner Doheny  suggests his serious anger with Deters. 

Doheny’s  recommendation now goes to the Board of Governors and after their ruling either party can ask for review by the Supreme Court.

The KBA is presenting six charges against Deters. The charges involve several disputed cases over which lawyer represented a client, whether or not Deters obtained a written fee contract with two clients, and statements that Deters made out of court about his perceived bias of a Circuit Court Judge from Grant County.

In one fee dispute involved Deters offered to enter fee arbitration with the KBA over the fee he charged and the KBA denied this offer.  He then offered to return the entire fee but the KBA refused his offer and continued to seek a sanction against him.

Deters has employed former gubernatorial candidate Larry Forgy of Lexington to represent him before the Board of Governors.

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