ERIC DETERS ATTORNEY COMMENTS ON BOARD OF GOVERNOR’S FINDINGS IN ERIC DETERS CASE – BOARD OF GOVERNOR’S IMPOSES A $52,000 TAX ON ATTORNEY’S RIGHT TO APPEAL

LawReader publishes below comments by the Hon. Larry Forgy of Lexington regarding the findings of the KBA Board of Governors in the case involving l9 ethics charges against Kenton attorney Eric Deters.

 The board acquitted Deters of 15 of the 19 charges pursued by the Bar Counsel’s Office.   We have not seen a case where the Bar Counsel was so substantially defeated by a ruling of the Board of Governors.

 One of the main issues addressed by Deters and Forgy in their arguments to the Board was the failure of the Trial Commissioner Frank Doheny, who ruled on the Deters case, to recuse himself.  Doheny disclosed at the trial before him that his law partner received a fee of $25,000 from the complainant who was allegeing that Deters charged an excessive fee of $1,500 in the same case.    Deters, following the statute, asked the Chief Justice of the Supreme Court to consider recusal of the Trial Commission after this disclosure.  The Chief Justice apparently refused to hear Deter’s motion for recusal, and the Board did not discuss this recusal issue in their findings. (???)

 Even though Deters won 15 out of l9 charges, the Bar Counsel submitted a cost bill of  $52,962.89.  Under current Sup. Ct. rules, any attorney who seeks an appeal to the Supreme Court of a finding by the Board of Governors must post a 100% surety with the KBA before his appeal will be heard by the Supreme Court.

 One issue regarding the cost bill is a claim for $18,620  relating to the Bar Counsel’s defense of a lawsuit filed by Deters alleging unconstitutional actions by the KBA in his discipline procedures.   There was no trial, just a few motions and perhaps a hearing, and the Federal Judge dismissed the action.   One would ask where is the jurisdiction of the KBA to impose a cost bill for an attorney seeking relief from a Federal Court?  One would think that costs awarded due to a filing of a federal law suit should be determined by the Federal Judge, and not unilaterally determined by the Bar Counsel’s office.

 It is clear from the ctions of the Bar Counsel, the KBA and the Board of Governors that they recognize the right to place a tax on all appeals by an attorney to the Supreme Court.

 The rules contain no procedure for the defendant attorney to challenge or examine the facts supporting the Bar Counsel’s cost bill.   Whatever the Bar Counsel claims is automatically imposed, and only if the attorney posts the 100% surety, can he argue to the Supreme Court that the cost bill is excessive or improper.

 We would respectfully submit that the Ky. Supreme Court should assure every attorney a due process right to challenge the validity of a cost bill imposed prior to the hearing of the appeal by the Supreme Court.

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 Statement of Larry Forgy on Behalf of Eric Deters Regarding Written Findings of Fact, Conclusions of Law and Recommendion of The Board of Governors of the Kentucky Bar Association 

             The decision of the Board raises many issues.  First, by a vote of 12-1, the Board rejected Frank Doheny’s report and recommendation and did a de novo review.  This is an obvious rebuke of the man we maintained made false statements, reached biased conclusions and made a vindictive recommendation of 181 days suspension. 

             Eric was found not guilty of 15 charges of 19.  The votes of not guilty were as follows:

             One vote 11-2 not guilty

            Five votes 12-1 not guilty

            Nine votes 13-0 not guilty

             In other words, the not guilty votes weren’t even close. 

             We have no idea who drafted this decision and how it came to be in its final form.  However, it raises several questions:

             1.         How can Frank Doheny, the Trial Commissioner, rule as he did when the Board so soundly repudiated his Report and Recommendation?

             2.         How can Bar Counsel charge and prosecute Eric for these 15 charges and not be subject to any public rebuke?

             Eric had to fight these for five years, address them in the media when they became public, and defend himself and his ethics in the face of Bar Counsel’s and Frank Doheny’s vindictive and punitive prosecution.  When you claim your innocent and will defeat Bar Counsel, no one believes you.

             3.         The four charges Eric was found guilty of will be appealed to the Kentucky Supreme Court.  Based on the facts and the rules, I’m confident I can convince the Supreme Court Eric deserves complete vindication. 

             4.         If Eric won 15 of 19 counts, should he not only have to pay 4/19ths of the costs?  He has to pay this $52,962.89 to even appeal to Kentucky Supreme Court.  $52,962.89.  It’s beyond outrageous. 

             In a criminal or civil case in Kentucky, no one has to pay the costs before they appeal.  This rule of the Bar Association must be unconstitutional.  In addition, criminals receive the benefit of the standard beyond a reasonable doubt.  Ohio attorneys receive the benefit of the standard clear and convincing.  Kentucky lawyers face the standard of only a preponderance of the evidence.  Furthermore, to not require costs to be paid from a murderer who stands convicted, but require it from a lawyer who stands “acquitted” of 15 of 19 charges and none of the guiltys include crimes, theft, malpractice, moral turpitude or harm to a client before the decision is even final, is ridiculous! Again, this Board decision is still not final.  We believe no bar complaints or charges should be made public until they are final.  Eric’s case is a perfect example of why.  He received negative publicity for charges he was found not guilty of by the Board.

             5.         Our federal lawsuit focuses on Bar Counsel having immunity from any misconduct.  They have more protection than a prosecutor.  They can’t be sanctioned under Rule 11.  It is outrageous what Bar Counsel did to Eric and continues to do to Eric.  Most recently, they filed a Bar Complaint against him based upon the federal lawsuit.  They did this after the September 16 vote by the Board.  This is interesting when one considers they are a Defendant in that case, a clear conflict.  They are now so angry they lost 15 of 19, they will be even more vindictive towards Eric.  The federal lawsuit has been around a while.  Only after Bar Counsel lost 15 of 19 do they file, on their own, a Bar Complaint against Eric.  Bar Counsel knows that the second federal lawsuit is still pending and Judge Reeves gave Eric the option of an audit versus a sanction on the first federal lawsuit and he accepted the audit.

             Bar Counsel is a collective group of out of control bullies.  We are willing to have faith the facts of Eric’s case will anger the Kentucky Supreme Court relative to Bar Counsel’s and Frank Doheny’s conduct.  If the Board of Governors is not going to rein them in, the Kentucky Supreme Court must act. 

             6.         Relative to the costs, there is no provision to move to modify or challenge them.  Look at the list they submitted:

 $18,620 involve the federal lawsuit.

  1. They list $11,792, $9,792, $9,753, $1,325 and $1,970 just as plain ole legal costs without any indication or description of what they are.  Should we not have the right to know what these so called “legal costs” are?

 7.         3.370(7) of the Supreme Court Rules states the Board of Governors shall file a written decision in 30 days from their vote.  This happened on September 16.  They filed their decision on October 21.  Is this fatal to them?  What is the recourse?  If we missed a Brief or Appeal deadline is there any doubt we would simply lose?     

 8.         Will Frank Doheny ever be allowed to serve as Trial Commissioner again?  His conduct in this matter is unforgivable.  The stress, aggravation and financial cost he inflicted upon Eric has no remedy.

 9.         While we are grateful the Board of Governors reduced 19 convictions to 4 and 181 days to 60, we are puzzled about a few conclusions.  For example, one of the factors in the punishment against Eric is that he maintained his innocence rather than accept his “conduct”.  Well, he was found not guilty by nearly 15 unanimous votes, so why would he not maintain his innocence and why should that be held against him.

 Conclusion

             Fairness would have dictated the Board would have reached this conclusion:

             “In light of Mr. Deters having to spend five years of time, money and stress fighting 15 charges on which we have found him not guilty and considering these charges and Frank Doheny’s report were made public and certainly harmed Mr. Deters in his practice and in the forum of public opinion, we do not believe a suspension or further punishment is warranted on the four counts on which we found him guilty, especially when these four did not involve crimes, malpractice, harm to a client or moral turpitude.  Mr. Deters has been punished enough by the publicity, the time, stress and costs of the process.”

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