ERIC DETERS BRIEF TO KY. SUPREME COURT – FORGY CALLS FOR DISMISSAL OF KBA FINDINGS

 

SUPREME COURT OF KENTUCKY

2011-SC-000641-KB

KENTUCKY BAR
ASSOCIATION                                                            MOVANT

 

V.
IN SUPREME COURT

 

ERIC DETERS                                                                                  RESPONDENT

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REVIEW REQUEST

UNDER SCR 3.370

 

Comes now, the
Respondent, by and through counsel, the Honorable Lawrence E. Forgy, Jr., and
for Respondent’s Notice of Review and Brief, states first and foremost,
gratitude for the extension of time granted.

Pursuant to SCR 3.370, Respondent gives notice he seeks review of the Findings of Fact, Conclusions of Law, and Recommendations of the Board of Governors of the Kentucky Bar Association entered October 21, 2011.

Pursuant to 3.370,
Respondent requests the Honorable Court to accept this matter for full review.

In addition, Respondent
files on this same date a Motion To Hold Any Ruling In Abeyance To Permit
Respondent To Take Limited Discovery On A Due Process Issue, specifically, the
appointment of Frank Doheny as Respondent’s Trial Commissioner.

INTRODUCTORY STATEMENT

No
lawyer in the Commonwealth of Kentucky has exemplified more courage than Respondent
in his fight against former Kentucky Bar Counsel Linda Gosnell, his Trial
Commissioner Frank Doheny, Interim Bar Counsel Jay Garrett and Respondent’s
prosecutor of record, Sarah Coker.

Faced
with what could have been the end of his legal career, he called lies lies and
injustice injustice.  A 181 day
suspension would have required a reapplication process which Bar Counsel would
have no doubt delayed and opposed.  To
their credit, the Kentucky Board of Governors found Respondent not guilty of 15
of 19 charges.  The attached Respondent’s
Board of Governors Brief summarizes the case of Respondent. The not guilty
votes were one vote, 11-2 not guilty; five votes, 12-1 not guilty; and nine
votes, 13-0 not guilty.  In other words,
the votes weren’t close.  This review
focuses on the remaining four which respectfully, the Board should have also
dismissed.  The stress of being so
publicly prosecuted; being sanctioned by a federal judge for seeking federal
relief; being willing to accept a law firm audit; having his bank’s auditors
express concern about his license; having to constantly ease the mind of his
clients and employees; having to wonder what clients never came in the door as
a result of this ordeal, resulted in an understandable emotional breakdown by
Respondent at the conclusion of the Board hearing.  Of course, this too was publicly reported by
the newspaper following the story hoping for Respondent’s demise for the
newsworthiness of the story.

These
four remaining Charges, like the other fifteen, do not involve the allegation
of a crime, dishonesty, moral turpitude, fraud, legal malpractice, substance
abuse, harm to a client or any dastardly deed.
They are nothing less than the remaining residue of a serial prosecution
of a lawyer who is a credit, not a bane, to the legal profession.  (See Exhibit A which is supported by the
record.)

We
ask this Honorable Court to vindicate Respondent by reversing the Board on the
four remaining charges.  If not, we ask
the Honorable Court to not suspend Respondent for a day.  He has suffered and been punished enough by
having to defend himself on what is at least fifteen baseless charges even in
the eyes of the Board.  As a public
figure, Respondent has been publicly maligned enough.

Issue One:      The Board of
Governors Missed the Deadline to Issue Their Findings and Order

 

Despite
preferring vindication on the merits, there is a procedural technical issue
Respondent must raise.  Pursuant to Rule
3.370(7), the Board had thirty days to file a written decision memorializing
their vote.  The vote took place on
September 16.  The Board filed their written
decision on October 21.           Respondent
is confident it was simply inadvertence, probably based upon meeting times, but
it makes no difference, it was late.
Rather than by October 15, the Findings and Order was filed October 21,
2011, five days late.

The
Rule says “shall.”  As the Court
is aware, there is no relief for a late Notice of Appeal or deadline missed by
a Respondent in a Bar Discipline process.
For example, if this Notice were filed tomorrow, it would be fatal.

If
the Court would like a short, simple dispensing of this matter, it has
one.  The Board missed the date, the
matter against Respondent should be dismissed.

The
Court has recognized this issue because the Court recently amended Rule
3.370(7) to give the Board forty-five days to file their written decision.  This makes sense to avoid the issue in the
future.

Respondent
requests dismissal of the remaining four charges for the Board’s failure to
timely file their written decision.

Issue Two:      The Only Charges Subject to Review Are the Four Remaining

Respondent
filed for an extension to December 18 (Sunday) to file his Notice of Review and Brief.
Movant did not file such a request.
Therefore, there can be no reconsideration of its written decision of
the dismissed fifteen charges.  Even if
there was, the margin of vote on these Charges should cause the Court to not take
notice.

Issue Three:   The Merits of the Four Remaining Charges

On
KBA File 16024, (Bates), Count II, SCR 3.130-8.2(a), the Board found Respondent
guilty of making “a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge.”  Respondent denies
vehemently making any false statement about Judge Bates.  If the Court accepts this matter, Respondent
will fully address this matter from the record.
In summary though, Judge Bates issued a Summary Judgment on a case and
opposing counsel to Respondent filed a Rule 11 Motion against Respondent on the
same day of the Summary Judgment, a truly remarkable event.  In the history of Kentucky jurisprudence, has
a Rule 11 Motion ever been filed the same day as a Summary Judgment was
entered?  Respondent had a legitimate question
of how this happened and questioned how it could have occurred.  He publicly discussed this on his radio show.  He chose his words very carefully.  He didn’t call Judge Bates any names, call
him a crook or anything of that nature.  He
never used the famous “Kangaroo Court” comment.
He simply asked: how can that happen?
Did the opposing counsel know some how the decision was coming based
upon opposing counsel being Judge Bates appointed Master Commissioner and being
friends with Judge Bates wife, who was the Judge’s secretary, or the Master
Commissioner’s husband who is the felony prosecutor for Judge Bates’ judicial
district.

On
KBA File 15674, (Clise), Count I, SCR 3.130-3.3(a), the Board found Respondent
guilty of making false statements in the guardianship pleadings that he filed
in Grant County District Court, which stated that Richard Clise was a
petitioner seeking to be appointed co-guardian with ex-wife, Stacey Clise.

As
argued and proven by Respondent, the Petition form was typed and prepared by
Respondent’s secretary and reviewed by Respondent.  However, it was signed only by
Respondent’s client.  It was a simple
inadvertent mistake that the ex-husband was typed in as a Petitioner.  The ex-husband had, as known by the District
Court, retained other counsel.  There was
a contested hearing.  The District Court
did not recognize it as a Petition for both because it wasn’t.  It was a classic scrivener’s error which went
unnoticed.  No evil deceit.  And, it happened because the ex-wife was
asking the Court to appoint her and her ex-husband guardians since they had
joint custody.  There was no
representation to the Court Respondent represented the ex-husband because he
didn’t.  Respondent was not going to be
able to “sneak” it by anyone.  The
allegation itself is silly, to be found guilty preposterous.

Also
on KBA 15674, the Board found Respondent guilty on Count V, SCR 3.10-7.09.02(2)
over phone calls to the ex-husband.  They
decided this constituted coercion and harassment.  The record is clear (transcribed voicemails)
all Respondent was trying to do is find out who Respondent’s lawyer was so a
unified front in litigation (both parents) could go forward.  In addition, the voicemail transcriptions
reflect Respondent wanting to keep the ex-spouse informed of what they were
doing as a common courtesy.

It
should be noted, Respondent was found not guilty of three charges in this
matter.

Finally,
on KBA File 15745 (Radakovic), the Board found Respondent not guilty on four,
but guilty on one, Court V, SCR 3.130-1.16(d) for failing to refund an amended
fee on a $1,500 legal matter.  The record
reflects it was a non-refundable fee and regardless he had earned the $1,500
fee.

It
is on these four matters, the Board reduced from a recommended 181 days
suspension to a 60 day suspension.

Issue Four:     Punishment

Respondent
does not deserve a suspension.  On pages
22-24 of the written findings, the Board discussed Discipline.

First,
as supported by the record, the December 18, 2003 private reprimand became public
by a mistake of the Supreme Court and made the press.  Former Justice Keller wrote a letter of
apology to Respondent.  This was not
recognized by the Board in their decision.
Also, on the merits of that discipline case, the “lien” was not paid
based upon a  chiropractor malpractice
issue.  Respondent fought for his client.  The “lien” was never paid.  This too is part of the record.

Relative
to the ABA Standards, it is unfair for the Board to use a matter ten years
prior which Respondent apologized for (he wrote it in anger) and has not
repeated.

What
is not understandable is how can the Board use “refuse to acknowledge the
wrongful nature of his conduct” against Respondent?  The Board found Respondent not guilty of 15
of 19 charges.   Why should he be
punished for not admitting guilt?

Also,
the statement Respondent made about $1,000 donation to Judge Bates opponent which
the Board relied upon for the guilty finding (15 of 19) was Respondent’s
opinion based upon a reasonable conclusion from a reasonable premise.

Relative
to the Clise matter, Clise admitted he was speaking about lawyers with
Respondent’s client and actually filed a lawsuit with a lawyer before
Respondent’s client, days after the communications from Respondent.

The
Board punished Respondent for multiple offenses when the multiple offenses were
not substantiated.  Respondent actually
agreed these Charges be consolidated to show how he was being serially persecuted,
not fairly prosecuted.

Respondent
battled these collective charges for five years, they fill eight banker boxes
and it cost him $300,000 to $500,000 of his billable time.  If it wasn’t his time, it would have been his
cash for a lawyer.

The
Board of Governors is in error when they state:

“The
Board of Governors is not aware of any mitigating factors.”

The
Board of Governors under ABA Standards failed to consider the following
mitigating factors:

  1. Absence of dishonest or selfish motive
  2. Full and free disclosure to disciplinary board and
    cooperative attitude toward proceedings
  3. Character and reputation
  4. Remoteness of prior offenses

 

All of these mitigating
were documented in the record and ignored by the Board by their own admission.

Issue Five:      Supreme Court Rule Changes

It
appears based upon the timing of circumstances and events the Respondent may
have played a role in several Supreme Court Rule changes.  This too should be factored in to
punishment.  Respondent helped change the
rules for the better for future lawyers.

  1. The Kentucky Supreme Court amended the SCR 3.370(7) to
    allow the Board 45 days to submit their decision.
  2. The Kentucky Supreme Court amended the rules so that
    Bar members can appeal to the Court without posting a bond to pay costs.
  3. Linda Gosnell was discharged.  Was it in part a result of Bar Counsel’s conduct
    against Respondent?  One rumor is the
    Board was upset with her “over prosecution.”
    If so, Respondent’s case is Exhibit A.

Respondent also
has a pending federal lawsuit challenge to Bar Counsel’s absolute immunity,
even from Rule 11, and the recusal process for Trial Commissioners.

Respondent’s
first federal lawsuit, in an effort to stop the process in this matter, drew
him a suspended sanction and a voluntary audit of his firms lawsuit filing
practices.  He “passed” his audit.  His zealous defense by filing the federal
lawsuit bought him more punishment.
Also, Bar Counsel attempted to apply the legal defense fees as costs and
the Board, to their credit, rejected this.
The first federal lawsuit fees Bar Counsel noted them as such on the
certification.  However, the second federal
lawsuit fees Bar Counsel tried to sneak them in as just “Legal Costs.”  (See Exhibit B for Bar Counsel’s misconduct from
the record.)  Who deserves a
suspension?  Coker or Respondent?  Gosnell or Respondent?)

Issue Six:        Chief Justice
Minton Should Have Heard Respondent’s Motion to Recuse Frank Doheny

Respondent
filed a Rule 26A recusal with the Chief Justice.  The Chief refused to hear it, citing the rule
any objection to the Trial Commissioner had to be made within ten days of their
appointment.  This is not reasonable
because Frank Doheny’s conflict didn’t arise until the middle of the hearing.  Doheny’s law partner accepted a $25,000 fee
from the couple who filed a Complaint against Respondent in the same matter as
complained about where Respondent’s $1,500 fee was in question.  In other words, the lawyer for the accuser
was the law partner of the Judge.  (See
Exhibit C for Frank Doheny’s misconduct as supported by the record.)

Furthermore,
Respondent had no idea Frank Doheny is a member of the Board of Kentucky Bar
Foundation.  It was not listed on his law
office website at the time Respondent checked him out after he was
appointed.   Should Bar Foundation Board members serve as
Trial Commissioners?

Issue Seven: First Amendment Issue

(See
Exhibit 1 to attached Respondent’s Board of Governor’s Brief.  This pertains to the Judge Bates issue.)

Issue Eight:    Reforms

Respondent
and counsel would like this case to be a platform for reform.  There has to be changes to the discipline
process.  These include:

  1. Charges should be private until the final Supreme Court
    decision.  If not, lawyers like Respondent
    may receive negative publicity despite later defeating the Charge.
  2. Bar Counsel needs to have better awareness of the
    motive behind a Bar Charge.  They believe
    the disgruntled client more than the lawyer in he said/she said
    situations.  For example, as supported by
    the record, it is clear the charges against Respondent derived from
    Respondent’s lawyer competition in the Northern Kentucky area.
  3. There should be more informal discussion and resolution
    at the outset of a bar complaint.
    Respondent hates to use another state as an example, but Bar Counsel
    should review the Ohio discipline process.
  4. Bar Counsel should exercise better discretion and
    restraint.
  5. Experienced practitioners who practice law should be
    more involved in the review of Bar Complaints and their prosecution.  Sarah Coker, Respondent’s prosecutor, has
    never practiced law outside Bar Counsel’s office.  The practice of law can be an unfair
    “minefield.”  Those who have walked in
    that “minefield” have a better understanding.
    In fact, Respondent believes this is why the Board, lawyers in the
    “minefield,” found him not guilty of 15 of 19 Charges.
  6. Bar Counsel should not have absolute immunity.  This has given rise to all the problems.  They feel untouchable.  It’s clear Linda Gosnell felt
    invincible.  Should they not at least be
    subject to Rule 11?
  7. The standard of review in lawyer discipline should be
    clear and convincing, not preponderance of the evidence.
  8. Bar Counsel, once a Trial Commission Hearing begins,
    has a policy of no negotiation once the hearing begins.  None during or after.  This is ridiculous.  No matter what comes out at the Hearing, Bar
    counsel is still unyielding.  Does this
    happen at civil and criminal trials?  No.
  9. Why should the Inquiry Commission members be
    secret?  A lawyer can’t object to a bias.  On the eve of Respondent’s Board of Governors
    hearing, he learned President Margaret Keane was the Chairman on one of his
    Inquiry Commission Complaints and she presided at the Board Hearing.  His Chief Judge was his “grand jury”
    forewoman.  When this was brought up by
    the Respondent, Ms. Keane did recuse herself.
  10. There really should be a three person panel to decide
    the Bar Charge, not a single Trial Commissioner.   The appeal to the Board should then be cut
    out.  The Board process is not suited to
    a proper review.  Have appeals go from
    the three person panel to the Supreme Court where the Justices are suited for
    judging.

Issue Nine:     The Price Paid By Respondent

Respondent
is not a threat to the public or his clients.
He does not deserve a suspension.

Bar
Counsel told lies in their Briefs in this matter and called them “technical
deficiencies.”  It is inherently unfair
that Bar Counsel Coker in not punished at all.
Yet, she can ask for Respondent to be suspended?  (See Exhibit A, B and C for all the misconduct
supported by the record.)

Other
painful side effects of Respondent’s Bar battle:

  1. Stress
  2. Time lost
  3. Money lost
  4. New business lost
  5. Clients lost
  6. Negative publicity of people thinking Respondent is
    suspended or disbarred.
  7. Stain on reputation
  8. Health affected
  9. Energy spent to battle
  10. Firm audit/federal sanction

 

The bullying by
Bar Counsel of Respondent continues.
They continue with similar Bar Charges such as these he has
defeated.  For example, they have charged
Respondent for his filing the first federal lawsuit.  Bar counsel claimed the source was Judge
Reeves.  Respondent wrote to Judge Reeves
and Judge Reeves confirmed he was not the source of the complaint.  Therefore, despite Linda Gosnell being fired,
Interim Counsel Jay Garrett and Associate Counsel Sarah Coker continue the
policies of Linda Gosnell of do whatever it takes to get someone they want to bring
down.  The record reflects from the day
Jay Garrett made a false statement to Respondent and Respondent asked him who
files Complaints against Bar Counsel, the quest to “get” Respondent was on.

Conclusion

I wrote a
statement which is part of the Board of Governors Brief.  It began with a quote Respondent has front
and center on his website:

“Aggressive fighting for the right
is the noblest sport the world affords.”

Theodore
Roosevelt

Respondent has
fought a righteous fight.  I have fought
it with him.  We ask this Honorable Court
to give him a just and full vindication.
He deserves it.

Respectfully,

 

 

Lawrence E. Forgy

83 C. Michael
Davenport Blvd.

P.O. Box 4292

Frankfort, KY
40601

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