KBA BAR COUNSEL STRIKES BACK AT ACQUITTED ATTORNEY

By Stan Billingsley, Senior Editor of LawReader.com       Oct. 30, 2011
In late October the KBA Board of Governors issued their decision on l9 ethics charges against Kenton attorney Eric Deters.  The Board acquitted Deters of l5 of the l9 charges.

The Bar Counsel of the Kentucky Bar Association has not taken well to their defeat, and has recently filed a new complaint against  Deters.   Some take the view that such a prosecution brought only after Deters defense was largely vindicated, indicates an act of retaliation against Deters for having the audacity of defending himself.

Under the strange organization of the KBA discipline process, the Bar Counsel is employed by and administered by the Board of Governors.   But strangely, the decision of the Board of
Governors in the Deters ethics cases, or any other ethics prosecution, can be appealed by the Bar Counsel, whom they administer and employ.  If the Supreme Court agrees with the Bar
Counsel in an appeal they can overrule the findings of the Board of Governors.
Yes, the Bar Counsel can appeal its employers decisions to the Ky. Supreme Court.  It is unknown at this time if the Bar Counsel will appeal their drubbing in the
Deters case, but Deters has indicated to LawReader that he will appeal the four minor counts of which he was convicted.

The Bar Counsel sought a long suspension of Deters, but the Board recommended a suspension of only 61 days.

Under the arcane rules of the Kentucky KBA discipline process, the prosecutor has the power to unilaterally pull a number out of thin air under the guise of setting the costs of prosecution of an
attorney.   The Bar Counsel notifies the Disciplinary Clerk of the amount claimed, and before the defendant attorney may file an appeal to the Supreme Court, he must post a 100% surety.

In Deters case the Bar Counsel has submitted a claim for $52,900 as their costs in the investigation and prosecution of Deters.  Yes, that means that in order for Deters to appeal to the Supreme Court he must post $52,900.  No, there is no rule for him to have a hearing challenging the cost bill submitted by the Bar Counsel.

One would think that the KBA should not be allowed costs when they lost l5 of 19 charges.
Minimum fairness would seem to require a reduction in the cost bill of at least 15/19 of the total claimed, since they lost on 15 counts.  That would reduce the cost bill from $52,900
to only $11,047.   Or perhaps the KBA should pay Deters costs for his acquittal on l5 counts?

A troubling question presents itself.  Since the Bar Counsel’s office  apparently gets to keep any court costs awarded by the Supreme Court, are they running up the tab in order to enhance
their budget?
One charge against Deters was that he charged a client an “exorbitant fee” of $1500 in a foreclosure action.   Does this rule not apply to attorneys for
the Bar Counsel’s office?

LawReader has review hundreds of ethics cases by the KBA and has learned that many complaints against attorneys occurred up to eight years prior to a decision being issued by the Supreme Court.  There is really no speedy trial rule being
enforced in ethics discipline cases.

There is no statute of limitations, even for minor procedural errors claimed against an attorney.

The “speedy trial” rule applies to murderers and rapists, but it apparently doesn’t apply to attorneys charged with minor offenses.  (Only one Kentucky appellate
court ruling cites the Speedy Trial rule, but does not require a dismissal.  It merely says that the sanction can be “mitigated” if the attorney’s speedy trial rights
were violated.”

Deters was cited by the Bar for not immediately admitting his guilt to all l9 charges. (They consider it an ethics violation to defend yourself?)
But the newest action by the Bar Counsel’s office tops everything.  After the Board of Governors slapped the Bar Counsel’s hand by acquitting Deters of l5
charges,  the Bar Counsel came up with a new charge against Deters.  The timing alone of this post acquittal charge is shocking, but the claim made in the
charge is clearly over the top.   The new charge alleges that Deters violated the Code of Professional Responsibility, by challenging the denial of his motion to recuse the Trial Commissioner who
initially heard the claims against him, he filed a lawsuit against the Bar Association alleging a violation of his constitutional rights to a fair hearing.
This Federal lawsuit was based on allegations by Deters, that the Trial Commissioner disclosed in the middle of the hearing, that his law partner had accepted a legal fee of $25,000 from the same client
who had filed the fee complaint against Deters.
The Trial Commissioner’s law partner had taken over the same case that Deters had previously handled for the same client.

In the Federal lawsuit against the KBA, the Federal Judge, Danny Reeves, granted a summary judgment motion of the KBA, and ruled that the Federal Courts do not have jurisdiction over unconstitutional State
Bar rules and procedures.  that ruling is on appeal to the 6th. Circuit.
Deters motion to the Kentucky Chief Justice to consider his motion to recuse the Trial Commissioner for a conflict of interest was ignored and never ruled on.  The
pleadings were returned to Deters with the message his motion was rejected.

(A similar lawsuit is pending in the 6th. Circuit Court of Appeals and reportedly the ACLU , as the Plaintiff’s attorney, cites some 60 rulings of Federal Courts
where they have taken jurisdiction over constitutional rights violation claims against State Bar Associations.)

The new ethics complaint against Deters relates to a claim by the KBA Bar Counsel to the effect that Deters had no right to seek a constitutional ruling from the Federal Court and that it was unethical to sue
the KBA.

In the cost bill submitted by the Bar Counsel Linda Gosnell, she claimed the cost of obtaining a Summary Judgment dismissal was over $18,000, and this was added to Deters cost bill.

The Board of Governors is ultimately responsible for the Bar Counsel’s office having to defend two Federal lawsuits currently pending in the 6th. Circuit Court of Appeals.  If a simple summary judgment motion required the KBA to expend $18,000, what will be the cost of defending two appeals to the 6th. Circuit.  Perhaps an adult supervisor somewhere would say why is the KBA defending two federal lawsuits, and is it worth spending $50,000 or $100,000 of Bar members dues, without anyone on the Board of Governors seeing if the defense offered by the Bar Counsel is worthy of such an expenditure.

One may argue that any costs or attorney fees awarded in a Federal lawsuit should be awarded by the judge in the court the claim was brought and not by the Kentucky Bar Association.

Typically in a summary judgment situation. the defendant would file an answer, do a little legal research, file a motion for summary judgment and attend one hearing.
The subsequent claim of a legal fee of $18,000 raises the eyebrows!!!   Apparently a claim against an attorney for charging an “exorbitant fee” applies to the attorney but does not
apply to the Bar Counsel.

Deters in a report to LawReader asserts that the Bar Counsel offered no breakdown of the $52,900 cost bill (other than the $18,000 relating to the federal lawsuit), and offered no supporting documentation to
justify the cost bill.

We once heard Chief Justice Robert Stephens say that the structure of the l976 Judicial Amendment to the Ky. Constitution, assured everyone of “the right to at least one appeal”.  But in a number of cases the right of the Bar
Counsel to impose large cost bills prior to an appeal certainly appears to deny the defendant attorney the right to any appeal.

It is reported that Judge Jay Bamberger was billed $18,000 in costs.  He filed no appeal.  It is reported that David Helmers was billed some $40,000 in costs and apparently did not submit the 100%
surety and therefore had no appeal. These numbers seem to be a very high tax on the right to appeal.
The Bar Counsel has been granted absolute immunity from civil actions. Bar complaints are defined by Supreme Court Rules as a civil action. We have found no rule however that says that ethics charges cannot
be filed against the Bar Counsel…but who would be foolish enough to do so?
Only two bodies can do anything about the conduct of the Bar Counsel.  The Board of Governors can assume and enforce their administrative control of the Bar Counsel’s
office, but evidence of them having exercised their administrative powers has no far been non-existent.  Then of course, the Kentucky Supreme Court could with the stroke of a pen correct all
of the structural errors in the current KBA discipline rules.

Both the Board of Governors and the Supreme Court should be aware of the growing number of attorneys who are outraged at the lack of due process.  LawReader has heard many
complaints from lawyers about the Bar Counsel’s office, and perhaps someday these reports will be directed towards someone who can look into these issues.

The theme we hear from attorneys is that they believe they are entitled to fair play and due process of law, and they don’t feel they are receiving their due.

Comments are closed.