ATTORNEY ERIC DETERS CONTINUES HIS FIGHT WITH KBA – ASSERTS HIS INNOCENSE OF ETHICS CHARGES – ASKS TRIAL COMMISSONER, “HAVE YOU NO HONOR?”

Feb. 27, 2010              By Stan Billingsley, Senior Editor LawReader.com

Attorney Eric Deters has filed a pleading with the KBA inquiry commission seeking an amendment of the findings of Trial Commissioner Frank Doheny, Jr.   He alleges in his motion filed with the Inquiry Commission, that Commissioner Doheny made numerous factual errors in his Findings recommending suspension of Deter’s law license for 181 days.  His motion seeks correction of the claimed errors.

Deters has previously filed pleadings which say that during the KBA investigation that the prosecutor offered a suspension for 30 days in exchange for a plea by Deters.  Deters says he rejected that and the KBA then recommended a 60 day suspension.  He says that Commissioner Doheny, who Deters sought to have recused from hearing his case, then asked for the 181 day suspension.  This raises the question that Doheny and the KBA is retaliating against Deters for refusing all plea offers.  We note that the recommendation of the KBA investigators was only one third as severe as the recommendation of the Trial Commissioner.

The Findings by Doheny appeared to be full of adjectives that are not usually found in findings of fact by judges.  Deters says he is innocent of all six charges.  

A reading of the Trial Commissioner’s impassioned Findings against Deters suggests that he is as passionate in defending his conclusions as Deters is in defending himself.

Deters sought the recusal of Doheny when it was revealed during the hearing that Doheny’s law partner was representing the party who filed a complaint against Deters regarding a fee.  The pleadings say that Deters charged a client $1500 in a foreclosure action and that he quit the case and Doheny’s law firm charged the same client $25,000 to take on the same case. Deters said that he asked the Bar Association to enter into the fee arbitration process available for fee disputes but the Bar refused to arbitrate the issue.  He says he then offered to return the entire $1500 fee but this was refused by the Bar.   

LawReader has not been able to review all of the six charges against Deters, but the pleadings seem to indicate that most of them arise out of his dispute with other lawyers fighting over clients, and for comments he made about a trial judge.  (Another case in pending in Federal Court in which the attorney, John M. Berry, Jr. of New Castle, Ky. was charged with a violation of SCR 3.130 (the same offense charged against Deters)  for writing a letter to the Legislative Ethics Commission.  Berry’s letter opined that an ethics decision by the Legislative Ethics Commission was incorrect.  Berry’s letter made no threats, was not intemperate, and merely argued a point of law. The Bar investigated the Berry letter for almost two years before finding no probable cause for a violation.  The matter would have died there, but the Bar, while finding no probable cause, issued a Warning Letter to Berry.  Warning letters are not appealable.  Berry and the ACLU have sued the KBA over their attempted chilling of his free speech rights. In essence the KBA told Berry, “you did nothing wrong, but don’t do it again.”  The Warning Letter was placed in Berry’s personnel file maintained by the KBA.)

Recusal procedures require that a recusal right can be waived, but if so, the parties must have an opportunity to meet outside the presence of the Judge or Commissioner and must indicate their waiver of the recusal grounds in a signed written document.   Deters may have waived his right to seek recusal by not objecting in a timely manner, but we have not found any pleading by the KBA which specifically states that the recusal was waived.   A strong argument exists that the only way to waive recusal grounds are by a written agreement of the objecting party.  Deters argument denies any formal waiver.

In the pleading filed by Deters on Feb. 24th, and we quote from his language, he alleges:

1.  The Trial Commissioner incorrectly found that Federal Judge Danny Reeves summarily dismissed Deters Section 1983 lawsuit against the KBA.

“(Doheny) did not check his facts, lashed out at me, made a false statement, spit out words to injure me and this a part of the pattern of misconduct by the Trial Commissioner. Is the Trial Commissioner repentant?  (These were his words in his Report fired at me.)”

2.  My lawsuit (in Federal Court) was not “completely unwarranted”……The Trial Commissioner got it wrong. Based on the Fieger decision in the Sixth Circuit Ct. of Appeals I can challenge in Federal Court the entire recusal procedure.”

3. “…the Trial Commissioner states I made false statements. I will challenge the Trial Commissioner again.  Name one false statement I made about Judge Bates on the radio or I filed in an affidavit?”

4. “There is not one single “unwarranted” statement made by me.”

5. There is not a “pattern of misconduct” by me. There is a pattern of defending myself against baseless charges. Since when does a lawyer, of all people, not be allowed to advocate and defend himself.”

6. “I completely denied I had a contingency fee agreement with the (client). The Trial Commissioner stated I did not deny this fact.”

7.  ” I worked at my office not at home on the (third party) matter as claimed by the Trial Commissioner in his report.”

8. “There was a written fee agreement in the form of a letter and there was more work than filing an Answer in the (client) matter.”

9. “The Trial Commissioner claimed falsely I devoted almost no time contradicting the (client) charges. I detailed my refutation over 22 pages on page l7 and-39 of my Brief. Read the Brief. I methodically destroyed the case against me.”

10) “The Trial Commissioner is wrong about my being allowed to call a person who is not my client. You are not allowed to solicit. I can call someone to give them updates and to check who their lawyer is so we can work together. That’s all I did.   The Trial Commissioner failed to check his law.”

11) “….after performing over $50,000 of free legal work for my community in a successful political battle, I am being recommended for suspension for naming, after reasonable inquiry and rational effort, the wrong agent for service of process. In litigation, across the state of Kentucky, every day, lawyers with no bad intention, name a Defendant or Agent of Service by mistake or to play it safe by naming all potential Defendants. Is Bar Counsel gong to prosecute this every time it happens?”

12. “I did not dismiss the jail case in “less than a week.  It went on for months. The Trial Commissioner did not check his facts.”

13. “I not only refuted, I refuted with crisp specific facts from the record, the allegations against me regarding Judge Bates on pages 3-17 of my Brief. Read the Brief.  I destroyed the case against me.”

“The Trial Commissioner does what he falsely accused me of doing. I challenge him again. Refute my statements here! One through thirteen. Refute them!  I provide the exclamation point because I am angry. Does the Bar Discipline anger? I’ve learned that apparently even justified anger at injustice increases your punishment. At least it does form Mr. Doheny.”

“Do you have no honor Mr. Doheny? I’ve been a lawyer for 25 years fighting for clients every day and you want to suspend that license based upon your false findings. Do you have no honor?”

“I shall take my battle to the Board of Governors, the Kentucky Supreme Court, Federal Courts and the fourth branch of government, the press.  I shall shout out from the mountain tops the injustice you want inflicted upon me. It’s not a lash out, it’s a reckoning. I believe if you sir had to choose ruling against the Bar Association and Jesus Christ himself, you would choose the Bar Association.”

                                                             CONCLUSION

We understand that the recommendations of the Trial Commissioner will next be heard by the Board of Governors.  Even if the Board finds Deters innocent of a charge, the KBA may appeal any dismissal to the Kentucky Supreme Court.

It takes a 3/4 votes of the Board of Governors to convict an attorney of an ethics violation.

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