Another Victory In My (Deters) Bar Battle: By Larry Forgy
(Article posted on Deters website.)
1. For the Kentucky Supreme Court at a special meeting on last Monday, November 15, to unanimously amend SCR 3.370 to remove the surety requirement for an attorney to appeal to
the Supreme Court any decision from the Board of Governors is historic and is also just. As we pointed out in our Motion, not even criminals or civil litigants must post a surety to appeal.
2. For the Kentucky Board of Governors on last Friday to unanimously remove $41,229.47 from Eric’s certified costs is also historic and just. When the Kentucky Bar Counsel
certified $52,962.89, we were shocked at the amount and the fact $44,229.47 was labeled as “legal costs” without informing us what constituted this amount except $18,620 for the first federal lawsuit defense Eric filed did not
have the transparency one would expect from Bar Counsel.
When we asked to review the costs, Bar Counsel refused. Also, when we asked about a Motion, Bar Counsel told us there was no rule allowing a Motion. After reading the rule, we
realized, there was no rule for a Motion to challenge the costs. We followed the legal principle “that which is not prohibited is allowed.” We filed a Motion (Attachment A) and copied to every Board Member. The Board
agreed to hear it and ordered Bar Counsel to Respond and allowed us to Reply to their Response (Attachment B).
We won. We are grateful to the Board. We won a Motion Bar Counsel represented we could not file and we believe is the only Motion like it ever filed.
Bar Counsel has been adding outside attorney fees as a cost on these matters. It’s been dishonest by the failure to represent the costs as legal fees and detail them and it’s been
improper because the law does not recognize attorney fees as costs.
3. Another amendment by the Supreme Court in SCR 3.370 under section 6 is the Board now has 45 days from their vote to issue a written decision. This too, we believe, was
initiated because of Eric’s case. The old rule said the Board “shall…in 30 days.” We pointed out they did not issue a written decision until after 30 days in our matter. The Board meets once a month so this 30 days is an
obvious close call. We believe this is an appealable issue for us and based upon the Supreme Court rule change, the Board and Court at least recognized the need for the rule change.
4. The fact we defeated 15 of the 19 Bar charges at the Board level we still believe the costs should be prorated. ($8,733.42) We should have to pay 4/19th of the $8,733.42. However, in light of the Supreme Court and the Board’s actions, we will live with it.
5. Also, we filed a Motion Friday to allow 30 more days to file our Brief to the Kentucky Supreme Court appealing the four charges. It was due Monday. The Court granted our Motion.
6. Stan Billingsley of Lawreader.com raised several issues we had not considered: Did Bar Counsel have authority from the Board to hire “outside” legal counsel? Why
does Bar Counsel need outside legal counsel? They have nine lawyers and there is no reason one of them should not be an expert on all state and federal issues relative to the Bar. Stan raises the issue whether or not Linda Gosnell,
Bar Counsel, is under fire based upon the recent handling of Eric’s and John Berry’s cases. Also, Eric detailed dishonesty of Bar Counsel in his matter to the Board. On Friday, Stan represented a lawyer Bar Counsel charged for being
an hour late for Court.
7. Of special note is Bar Counsel including Stites & Harbison attorney fees for defending both federal lawsuits, The first federal lawsuit asked for intervention to stop the Bar process based upon a conflict of the Trial Commissioner. This is the case in which Judge Reeves overruled the Motion for Injunctive Relief. Eric then dismissed the case. Eric had to suffer a sanction which Judge Reeves suspended for an audit of Eric’s federal lawsuit filing practices. The audit was
completed in early November.
The second lawsuit is still pending. There is a Motion to Dismiss for Judge Reeves to rule on. This case has two narrow issues:
Immunity of Bar Counsel
- The Recusal of Trail Commissioners Based upon federal law, we asked only for a ruling that applies to future Bar proceedings against Eric. For Bar Counsel to try to include these fees to Stites & Harbison
when they have nothing to do with these current charges is dishonest. Furthermore, Stites & Harbison only filed a Motion to Dismiss in both federal cases and their bill is $44,000! At this rate, if Eric hired a lawyer
to represent him from the beginning, his legal fees would be $1,000,000. There is another issue relative to Stites & Harbison. Was this legal work bid? How did they work?
8. Bar Counsel is out of control. After the defeat of 15 of 19 of their Bar Charges, they filed a Bar Complaint against Eric over the first federal lawsuit. Bar Counsel is obsessed with “getting” Eric solely because he has had the courage to stand up to them. Bar Counsel should not be vindictive. They have forgotten they represent the lawyers in Kentucky. They should act in the best spirit of the profession, not the worst.
(c) Supreme Court November 15 Order
(d) Board of Governors Order November 18