INTERFERENCE OF BAR COUNSEL IN SELECTION OF TRIAL COMMISSIONERS REPORTED TO KBA IN 2009 – Has the Bar Counsel influenced selection of KBA Trial Commissioners in violation of Sup. Ct. Rules?

LawReader.com – Dec. 9, 2011
In a letter written in 2009,( and shared with LawReader on Dec. 9, 2011), the KBA was warned of issues regarding the interference of the Bar Counsel regarding the selection of Trial Commissioners assigned
to hear ethics discipline cases.

Copies of this letter were reported to have been shared with several KBA officials including the Bar Counsel. (This letter is no longer confidential since the Board has made a final ruling in this case.)

This letter alleges that the procedures used to select the Trial Commissioner was not in compliance with Supreme Court Rules:

The letter states:  “…we are aware that Bar Counsel has participated in selecting prior Trial Commissioners in this case because she told us that Frank DohenyJr.  was selected for his experience in class
action law.”

“Because the Rules do not provide for any role for Bar Counsel in the selection of the “next available” name on the Trial Commission list, we respectfully request that Bar Counsel should either refrain from having any
conversations with the Disciplinary Clerk concerning the selection of the Trial Commissioner or have all such conversations occur in the presence of counsel for Respondent.”

For authority regarding the procedures for the selection of Trial Commissioners we refer to Kentucky Bar Ass’n v. Harris, 269 S.W.3d 414 (Ky., 2008) which states:
“The Disciplinary Clerk appoints the next available Trial Commissioner to serve as a hearing officer. SCR 3.230. Trial Commissioners are also appointed by the Chief Justice, subject
to approval of the Supreme Court. SCR 3.225.”


Nothing in the court’s ruling suggests that the Bar Counsel/Prosecutor has any right to interfere or influence the selection of the Trial Commissioner/judge who will actually hear the attorney discipline case.

Doheny was recently assigned to the Eric Deters discipline case, and apparently has been on the list provided by the Supreme Court at least since 2009.  We find no authority in the Supreme Court Rules for the Bar Counsel or the
disciplinary clerk to select Trial Commissioners based on their expertise in “class action cases” or any other type of practice.

Deters moved for recusal of Doheny as the Trial Commissioner in his case, after Doheny disclosed after the hearing started, that one of his fellow attorney’s at Dinsmore and Shohl had taken over
and completed the case that Deters was being prosecuted for.  The client who complained against Deters was representedd by  the Trial Commissioner’s law partner.

The particular charge alleged that Deters had charged a fee of $1500.  Doheny advised Deters that his law partner charged a fee of $25,000 to complete the case from which Deters was fired by
the complaining client.  Deters sought mediation of the fee, but the Bar Counsel objected.   Deters offered to return the entire fee but the offer was rejected by the Bar Counsel.

Deters motion for recusal of Doheny was rejected by the Chief Justice, and Doheny completed the hearing and recommended a sanction against Deters.

The Disciplinary Clerk is to appoint “the next available Trial Commissioner” who is selected from a list of nominees appointed by the Chief Justice subject to the approval of the Supreme Court. No role is provided in the rules, for the Bar Counsel to interfere or to have the right to influence, the selection process of the Trial Commissioner.

The 2009 letter we quote says the Bar Counsel “told us that Doheny was selected for his experience in class action law.”

(Doheny is generally recognized to practice medical malpractice defense cases, and we are unaware of his expertise in “class action cases” which was cited by Linda
Gosnell to support his selection as a Trial Commissioner in a “class action” related case.)

(We would expect that this letter should be in the KBA files. An independent investigation as requested by Billingsley and Larry Forgy could begin their review by looking for this and similar letters. )

We cannot imagine any right for the Bar Counsel to interfere in the selection of Trial Commissioners in violation of the procedures set out by the Supreme Court.

We can’t imagine that the Supreme Court is aware of this twisting of their rule providing for the selection of “the next available” Trial Commissioner nominee.
This rule implies that the Trial Commissioner is to be randomly selected. See: SCR 3.230.

It is hard to imagine a Commonwealth Attorney having the power to select the Trial Judge to hear a case to be prosecuted by the Commonwealth Attorney’s Office?

It was reported to LawReader that former Bar Counsel Linda Gosnell was seen in the office of Dinsmore and Shohl this week speaking to a Dinsmore lawyer.
Interesting coincidence.

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Authorities for selection of Trial Commissioner

Kentucky Bar Ass’n v. Harris, 269 S.W.3d 414 (Ky., 2008 provides a detailed analysis for the attorney discipline process.

The following quotes are from KBA v. Harris:

“When a complaint of professional misconduct comes to the Kentucky Bar Association, the gears of the disciplinary proceedings are set in motion. “

“The Office of Bar Counsel2 reviews the complaint, has it reduced to a sworn written statement (SCR 3.160) and files it with the Disciplinary Clerk.3 “

“The Disciplinary Clerk (or deputy) notifies the attorney by certified mail, etc. of the complaint and of his or her response time. SCR 3.160. “

“Bar Counsel investigates the complaint and presents the case to the Inquiry Commission. SCR 3.170. The Inquiry Commission consists of nine persons (six attorneys, and three
non-attorneys) appointed by the Chief Justice with consent of the Court.”

“The Inquiry Commission meets in panels of three, with two attorneys and one non-attorney on each panel. SCR 3.140.”

“The Inquiry Commission reviews the investigative evidence from Bar Counsel and any response from the accused attorney (Respondent) and determines whether the complaint should be dismissed
or a charge be filed. SCR 3.170.”

“If the Inquiry Commission determines “that probable cause exists for a charge to be filed,” it drafts the formal charges which are filed with the Disciplinary Clerk. SCR 3.190.”

“The Disciplinary Clerk appoints the next available Trial Commissioner to serve as a hearing officer. SCR 3.230. Trial Commissioners are also appointed by the Chief Justice, subject to
approval of the Supreme Court. SCR 3.225.”

“The Trial Commissioner sets the matter for a hearing. All charges, pleadings, motions, notices, briefs, orders, etc. shall be filed with the Disciplinary Clerk. SCR 3.290. After a hearing,
with evidence, briefs, and oral argument, the Trial Commissioner must decide the case by “a preponderance of the evidence.” SCR 3.330.”

“Upon submission of the case, the Trial Commissioner files a written report with the Disciplinary Clerk. SCR 3.360. The written report sets forth the findings of fact, conclusions of law,
whether or not a violation occurred, and if so, the proposed sanction. Id. Either party may file a timely “Notice of Appeal” with the Disciplinary Clerk (SCR 3.365) which transfers jurisdiction to the Board of
Governors.4”

“The Board may review the record or grant a de novo hearing. SCR 3.370. The Board’s decision may be appealed to the Supreme Court by either party. SCR 3.370(8). Notices, pleadings, briefs, etc.
before the Board are all filed with the Disciplinary Clerk and upon filing of the “Notice of Review” of the Board’s decision, the record is transferred to the Supreme Court Clerk. After the parties file briefs, the case
is considered submitted to the Supreme Court for a decision. SCR 3.370.”

“A closer inspection of the functions described above reveals that the Disciplinary Clerk is merely an administrator, much like the District/Circuit Court Clerks that receive papers,
serve notices by mail, and appoint warning order attorneys, etc. when needed. The Clerks, as an administrative [269 S.W.3d 418] arm working with the attorneys, parties, witnesses, and judges, in no way affect the impartiality of
the decision maker.”

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