JUST WHEN YOU THOUGHT THE KBA BAR COUNSEL’S OFFICE WAS UNDER ADULT CONTROL, THEY DO IT AGAIN! Attorney Eric Deters files Injunction Suit in Franklin Circuit Court against KBA when Bar Counsel overrules the Supreme Court Sentence and seeks to increase his period of suspension

By LawReader Senior Editor Stan Billingsley

In November of 2011, the Board of Governors exercised their authority to regulate the Bar Counsel’s office by discharging Linda Gosnell. Many believed that this firing was a signal that the Board of Governors was adopting a new standard of conduct for the remaining prosecutors in the Bar Counsel’s Office. The Courier Journal reported that one insider even commented that one of the reasons Gosnell was discharged was “excessive punishment” of lawyers by her office.

(Neither the Board of Governors nor the KBA have ever issued a public statement explaining why the KBA’s chief ethics prosecutor was summarily dismissed)

Supreme Court Rule SCR 3.505 (1)(b), strangely permit the Bar Counsel’s Office to object to the automatic reinstatement of any attorney who receives a suspension from the Supreme Court.

Since Eric Deters received a suspension of 61 days (after his acquittal of l5 of l9 charges brought against him) he was entitled to be automatically reinstated in the practice of law after the expiration of his 61 day sanction. However SCR 3.505(1)(b) permits the Bar Counsel to merely write a letter to the Character and Fitness Committee, and then a lengthy hearing process must be conducted by the Committee before the attorney can be reinstated. At this hearing the burden of proof is placed on the defendant attorney to prove his good character.

The effect of this Rule will likely mean that the 61 day period of suspension issued by the Kentucky Supreme Court will be ignored, and Deters must now go through a hearing before the Character and Fitness Committee.

This procedure is claimed by Deters, in his suit for an injunction, to be a denial of his due process of law. He also challenges the constitutionality of this delegation of sentencing by the Supreme Court.

One would think that when the Bar Counsel’s Office was embarrassed after losing l5 ot the l9 counts they brought against Deters, that they would get on with their lives and attend to other matters before them. However, the new attack on Deters indicates that the acting Bar Counsel Jay Garrett and Deputy Bar Counsel Sarah Coker, are like the Bourbon Kings who ruled Europe from 1589 to 1793. It was said of them, “they learn nothing and forget nothing.”

Not being satisfied with having obtained rulings in 4 counts against Deters, they just couldn’t act like adults. The now are seeking to use this questionable rule and overrule the findings of the Board of Governors and the Supreme Court and add up to four additional months of suspension against Deters by filing their objection to his automatic reinstatement and subjecting to a new hearing. The U.S. Supreme Court has described attorney discipline proceedings as “quasi-criminal” proceedings. Can you imagine a rule that allows the Commonwealth Attorney or County Attorney who does not get a conviction on all charges, having the power to overrule the sentencing court and greatly increasing the defendants penalty? Deters can’t imagine that such a procedure is constitutional, and he is seeking to have it reviewed.

He is seeking a prompt hearing before the Character and Fitness Committee or a decision voiding SCR 3.350 (1)(b). He is hopeful that the Franklin Circuit Court may void this application of SCR 3.350(1)(b), and allow him to be automatically reinstated upon the expiration of his 61 day suspension.

The Bar Counsel has claimed that Deters has five new charges pending and should not be instated. Never mind that these new charges were filed after Deters spent several years in litigation on the original l9 charges, and only after his final jugement dismissing l5 of the l9 charges against him.

The Interim Bar Counsel Jay Garrett, and Deputy Bar Counsel Sarah Coker, are cited as the parties who have filed their objection with the Character and Fitness Committee seeking a lengthened period of suspension.

Garrett and Coker filed these new five charges after all other charges against Deters were finalized. They are arguing for a theory that they can justify continuing the suspension of an attorney as long as they can file new charges ….and never mind that the defendant attorney has never been tried on these new charges. They argue that they can merely file new complaints, apparently forever, and in effect permanently disbar an attorney even though he was only sentenced to a period of suspension of 61 days.

This motion by the Bar Counsel’s Office against Deters clearly expresses their dislike of Deters. But their claim that he is unfit to be a lawyer, should be viewed in the light of his vigorous defense of himself, and his great grasp of constitutional law. You may disagree with Deters politics, or his radio show, but you have to concede he is one tough lawyer and the Bar Counsel is making a mistake underestimating his knowledge of the law. He won l5 of l9 charges, and they still argue he is not a competent attorney???

The word on the street we hear, is that the Bar Counsel’s Office is just being vindictive against Deters. He beat them on 15 of l9 counts, and some feel they detect a sense of vindictiveness and losers remorse by the Bar Counsel’s Office. How far will the Board of Governors and the Supreme Court allow the Bar Counsel’s Office to exercise ever trick in the book to exorize  their defeat before the Board of Governors and the Kentucky Supreme Court.

The Board of Governor’s had the authority to dismiss Linda Gosnell, and they clearly have the authority to dismiss Garrett and Coker. Maybe that would finally send the message that the Board is demanding adult conduct by the Bar Counsel’s Office.

Let us be careful to note. Bar Counsel Jay Garrett and Deputy Bar Counsel Sarah Coker are not breaking a law. SCR 3.350 (1)(b) actually gives them the right to file a letter with the Character and Fitness Committee and automatically the lawyers suspension is extended until all the hearings before that Committee are completed, and issues already litigated must be re-litigated by the defendant attorney. However, we find no rule that says the Board can’t fire an employee of the Bar Counsels at their discretion.

The lawsuit filed by Eric Deters in the Franklin Circuit Court on April 18th. seeks injunctive relief to stay the action of the Interim Bar Counsel Jay Garrett and by Deputy Bar Counsel Sarah Coker, to unilaterally increase the period of suspension from the practice of law from 61 days to a possible six months. (And to possible obtain a permanent suspension if they are successful.)

Deters claims in his lawsuit that the Supreme Court Rule delegating the final sentencing power to the Prosecutor in attorney discipline is unconstitutional.

SCR 3.350 (1)(b) was adopted by the Kentucky Supreme Court years ago, and the present panel on the Supreme Court now has the responsibility to consider if they wish to continue to delegate their sentencing powers to the prosecutor.

In 2011 the KBA Bar Counsel sustained a significant embarrassment when the Board of Governors and later the Kentucky Supreme Court, found that l5 of the l9 count complaint that the Bar Counsel had brought against Deters should be dismissed. The 181 day period of suspension sought by the Bar Counsel against Deters was reduced to only 61 days.

There is one thing that many have not considered. The Character and Fitness Committee is not the rubber stamp of the Bar Counsel’s Office. The members of the Committee are appointed by the Supreme Court, and they have the right to conduct their own investigation, and they don’t have to grant the relief sought by the Interim Bar Counsel and his Deputy. Further we find no requirement that they must take months to rule on this issue.

When the Board of Governors discharged Linda Gosnell, many thought they were sending a message to the Bar Counsel’s Office to start acting like adults. The Character and Fitness Committee could call a meeting before the expiration of Deter’s 61 day suspension, and dismiss the request for an increased sentence of suspension. They can find that the filing by the Bar Counsel of five new charges against Deters, should not be considered in this current action until such time as Deters has had a hearing and the Board and Supreme Court has sustained any new conviction.

The Character and Fitness Committee members may not be in the mood to rubber stamp the apparent retaliatory motion of the Bar Counsel’s Office. This ball is now in their court. Their reputation as an independent body is at risk. They can meet immediately before Deters sentence is actually extended past the 61 days, and dismiss this motion.

It is of course always possible that the Kentucky Supreme Court could step in (like they did recently when they found that the Bar Counsel was improperly limiting the right of a defendant attorney to appeal an ethics ruling by requiring defendant attorneys to pay in advance all attorney fees unilaterally claimed by the Bar Counsel’s Office before an attorney had the right to appeal to the Supreme Court.)

We believe that the final sentence of the Supreme Court, as recommended by the Board of Governors should stand. They have ruled, and the attempt by the Bar Counsel’s Office to set aside the Court’s final judgment should not be allowed.

If the KBA has new charges against Deters, then let them advance. If he is convicted on new charges, then punish him after he is convicted. Allowing the Bar Counsel to come up with new charges after they sustained such an embarrassing loss in the original action should not be a justification for overruling the Supreme Courts sentence in the Deters case.

Just when we thought that the Board of Governors had cleaned up the mess in the Bar Counsel’s office, they once again demonstrate that they have learned nothing from the firing of Linda Gosnell, and they are unwilling to forget their loss of l5 of l9 counts against Deters.

The Bar Counsel’s Office has advertised that they are looking for a new Bar Counsel. One would hope that whoever the Board hires, he/she will be able to bring some adult supervision to the Bar Counsel’s Office.

 

FOOTNOTES Regarding SCR 3.505(1)(b):

KBA Bar Counsel Can Overrule the Sanctions Re: Suspensions Imposed by Supreme Court

Review of the Rules Regarding the Character and Fitness Commission When Bar Counsel Objects to Reinstatement

The Supreme Court by adoption of the following rules has delegated to the Character and Fitness Committee the right to ignore the ethics sanctions handed down by the Ky. Supreme Court if the Bar Counsel objects to the automatic reinstatement of the defendant attorney.

SCR 3.505 (1)(b) allows the Bar Counsel to object to the automatic reinstatement of the defendant lawyer, and under Section (4) the burden of proof is placed on the defendant attorney to prove his “good character and fitness to practice law.”

Either the Bar Counsel or the Defendant Attorney may request a hearing before the Committee, and this must be held within 60 days of the request.

Unless the Bar Counsel has requested the hearing, the defendant attorney should promptly make a demand for a hearing.

The Character and Fitness Committee must issue a decision within sixty (60) days of receipt of the transcript of hearing. This means that any delay in the court reporter in delivering the “transcript of the hearing” held by the Character and Fitness Committee, may work to expand the period of suspension of the defendant attorney.

It is highly possible that an attorney may serve the majority of his period of suspension, then the Bar Counsel may object to the automatic reinstatement, and the hearing process required may add another three or four months to the attorneys suspension even if he is successful.

So a 60 day suspension may easily become a 180 day suspension solely on the motion of the Bar Counsel.

We are not aware of any statute or rule in any other area of the law which allows a prosecutor to unilaterally add to the punishment imposed by the Kentucky Supreme Court.

If the Board of Governors has recommended a suspension of 60 days, and the Supreme Court has accepted that recommendation of the Board of Governors, then it must be recognized that the Bar Counsel as a result of this rule, has sentencing powers that exceed those of the Kentucky Supreme Court.

RULES OF THE SUPREME COURT OF KENTUCKY

PRACTICE OF LAW

SCR 3.505 Character and Fitness Committee; reinstatements

(1) The Character and Fitness Committee created by SCR 2.040 shall, in addition to the powers and duties conferred in that rule, consider all applications for reinstatement to the practice of law by persons who:

(a) have been suspended for more than one hundred eighty (180) days;

(b) have been suspended for one hundred eighty (180) days or less, but whose reinstatement has been opposed by Bar Counsel.

(2) The Character and Fitness Committee may act upon the application and such investigative material as it may gather or Bar Counsel may tender to it, all of which information not submitted by the Applicant shall be made available to the Applicant.

(3) The Applicant or Bar Counsel shall have the right to a hearing before the Character and Fitness Committee prior to the issuance of its decision. The hearing shall be held within sixty (60) days from the request. The report of the Committee shall be filed within sixty (60) days of receipt of the transcript of hearing.

(4) If either party requests a hearing before the Character and Fitness Committee, the Applicant shall have the rights accorded a Respondent in a disciplinary proceeding pursuant to SCR 3.300, except that the Character and Fitness Committee shall hold the hearing rather than a Trial Commissioner. The burden of proof of one’s good character and fitness to practice law shall be on the Applicant.

HISTORY: Amended by Order 2003-4, eff. 1-1-04; adopted by Order 98-1, eff. 10-1-98

RULES OF THE SUPREME COURT OF KENTUCKY

ADMISSION OF PERSONS TO PRACTICE LAW

SCR 2.040 Character and Fitness Committee; nominations

(1) There is hereby created a Committee on Character and Fitness, hereinafter referred to as the Committee, to be composed of five attorneys, appointed by the Supreme Court for terms of three years, the members to serve until the expiration of their terms and until their successors are appointed. The Supreme Court of Kentucky shall appoint the Chair of the Committee.

(2) Subject to the approval of the Supreme Court, the committee shall have the power to adopt and amend rules and regulations governing the manner in which it carries out its duties. The Character and Fitness Committee may appoint from the bar of the state associate members of the Character and Fitness Committee.

(3) The Committee on Character and Fitness is charged with the responsibility of determining the age, character and fitness, education and general qualifications of those applicants for admission to the bar of the Commonwealth whose applications are referred to it by the Clerk of the Supreme Court. The Character and Fitness Committee is further charged with the duty of certifying to the Supreme Court persons who appear qualified to perform legal services as interns under Rule 2.540.

(4) The Character and Fitness Committee, in determining the character and fitness of an applicant for admission to the bar of the Commonwealth, and in determining the character and fitness of a person seeking to perform legal services as an intern under Rule 2.540, may have such persons investigated by associate members of the Character and Fitness Committee, members of the bar of the state, the National Conference of Bar Examiners or any other reputable investigative agency. Subject to the approval of the Supreme Court the Character and Fitness Committee may compensate any person or agency making such investigation out of

funds held for that purpose.

(5) The Character and Fitness Committee shall submit to the Board of Bar Examiners the names and addresses of all applicants to take the examination who will be eligible upon approval from the standpoint of character and fitness and upon submission of the required recommendations of their law school deans. Said list shall be submitted no later than 30 days after the extended late deadline. At least ten days prior to each Bar examination the Character and Fitness Committee

shall certify to the Secretary of the Board of Bar Examiners the names and addresses of all applicants who are qualified to take that Bar examination.

(6) From time to time, the Character and Fitness Committee shall recommend to the Supreme Court admission to the bar without examination of applicants for such admission who qualify

therefor under the provisions of Rule 2.110.

(7) The Character and Fitness Committee shall have the power to issue subpoenas and to assess costs as it shall determine necessary.

HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 2-1-00 (Order 99-1), 1-1-97 (Order 96-1), 8-1-92, 2-24-86, 1-1-78, 3-10-73

SCR 2.002 Fiscal provisions

(1) The fees collected by the Kentucky Office of Bar Admissions shall constitute a fund to provide for the ordinary and necessary expenses of the administration of the bar examination and the operation of both the Board of Bar Examiners and the Character and Fitness Committee.

(2) An annual budget including all income and expenditures shall be prepared by the Board and the Committee and submitted to the Supreme Court not less than four (4) months prior to the commencement of the next fiscal year. The budget shall distinctly set forth expected revenues according to source, together with carryover funds from the previous year, and shall list budgeted amounts for each category of expenditure in sufficient detail to identify clearly the nature of the respective expenditures.

(3) Upon approval by the court, the budget shall govern the fiscal operation of the Board and the Committee. Each expenditure category may be increased or decreased by not more than ten (10) percent. Further departure from the budget allotments may be made only upon approval of the court.

(4) All fees collected by the Kentucky Office of Bar Admissions for the Board and the Committee shall be recorded and deposited promptly in a joint account of the Board of Bar Examiners and Character and Fitness Committee. Each repository of funds and each bank account shall be designated by the Board and the Committee and approved by the Court.

(5) All disbursements shall be in accordance with the budget and recorded. Checks shall bear such signatures and countersignatures as the Board and the Committee shall direct.

(6) At least once each quarter a financial report shall be prepared at the direction of the Board and the Committee and transmitted to the Court.

(7) Each member of the Board and the Committee and each employee given responsibility by the Board and the Committee for the receipt or disbursement of funds shall be bonded in an amount specified by the Board and the Committee.

(8) There shall be an annual audit of the Board and the Committee by the Administrative Office of the Courts or, at the election of the Board and the Committee, a private accounting firm approved by the Court. The report of the audit shall be submitted to the Court. Each annual audit shall be paid for by the Board and the Committee.

(9) The Board and the Committee may employ such personnel as the Court authorizes. Their compensation shall be fixed by the Board and the Committee subject to approval by the Court. The compensation of members of the Board and Committee shall be fixed by the Court.

(10) Printing and purchasing shall be regulated by procedures established through the Administrative Office of the Courts except that the duplicating of bar examinations shall be accomplished in such manner as the Board designates in order to preserve the security thereof.

HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 8-1-92 (Order 92- 1); adopted eff. 2-1-81

The following rule appears to apply to new attorneys, but might be interpreted to be used against suspended attorneys who seek reinstatement.

SCR 2.011 Moral character and fitness

All applicants for admission to the bar of this state must be of good moral character and general fitness requisite for an attorney.

(1) Every applicant shall be of good moral character. The applicant shall have the burden of proving that he or she is possessed of good moral character. The term “good moral character” includes qualities of honesty, fairness, responsibility, knowledge of the laws of the state and the nation and respect for the rights of others and for the judicial process. Good moral character is a functional assessment of character and fitness of a prospective lawyer. The purpose of requiring an applicant to possess present good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Code of Professional Responsibility.

(2) Fitness is the assessment of mental and emotional health as it affects the competence of a prospective lawyer. The purpose of requiring an applicant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, Courts or the profession. A person may be of good moral character, but may be incapacitated from proper discharge of his duties as a lawyer by such illness or condition. The fitness required is a present fitness, and prior mental or emotional illness or conditions are relevant only so far as they indicate the existence of a present lack of fitness.

(3) If the Committee’s initial review and investigation into the character and fitness of an applicant reveals any of the following conduct, further detailed investigation shall be undertaken, as determined to be warranted, prior to the Committee’s determination regarding whether the applicant possesses the requisite character and fitness to practice law in Kentucky:

A. Unlawful conduct

B. Academic misconduct

C. Making a false statement, including omissions of material information

D. Misconduct in employment

E. Acts involving dishonesty, fraud, deceit or misrepresentation

F. Abuse of legal process

G. Neglect of financial responsibilities

H. Neglect or disregard of ethical or professional obligations

I. Violation of an order of court

J. Conduct indicating mental or emotional instability impairing the ability of an applicant to perform the functions of an attorney

K. Conduct indicating substance abuse impairing the ability of an applicant to perform the functions of an attorney

L. Denial of admission to the bar in another jurisdiction on character and fitness grounds

M. Disciplinary complaints or disciplinary action by an attorney disciplinary agency or a professional disciplinary agency of any jurisdiction

(4) Each applicant for admission to the Kentucky Bar shall pay all investigative fees, reporting fees or other expenses required and assessed by the Character and Fitness Committee as deemed necessary in determining

)

Rule 2.010 Character of Applicant; Oath

An applicant for admission to take the bar of this state must be of good moral character and general fitness requisite for an attorney and take the oath to support the Constitutions of the United States and Kentucky.

Rule 2.110 Admission Without Examination

(1) Any person who has been admitted to the highest court of the District of Columbia or some sister state and who had been engaged in the active practice of the law for five of the seven years next preceding his application may be admitted to the bar of this state without examination provided that the qualifications required for admission to the bar in such district or state were, at the time of his admission, equal to or higher than those for admission to the bar in the Commonwealth of Kentucky at that time. Active engagement in the teaching of the law shall be considered active engagement in the practice of the law.

(2) An attorney applying for admission under this Rule shall file with the Clerk of the Supreme Court, on the form provided for application for admission, such information as shall be requested thereon together with a fee of seven hundred fifty dollars ($750.00), no part of which shall be returned. The Clerk shall forward the application to the Chairman of the Character and Fitness Committee. An applicant shall file with the Character and Fitness Committee such other affidavits or materials as shall be required to satisfy the Committee of the applicant’s moral character and fitness to be a member of the Bar of this state. With respect to character and fitness, the Character and Fitness Committee shall process such applications pursuant to Rule 2.040.

(3) In addition to the fee above described, an attorney applying for admission under this Rule shall pay all investigative fees, reporting fees or other expenses required and assessed by the Character and Fitness Committee, including but not limited to the fee paid to the National Conference of Bar Examiners.

NEW SECTION

(4) Admission under this rule shall be conditioned as follows: (a) Applicant shall file with the application for admission a verified statement that, if admitted, the applicant intends to engage in the practice of law in Kentucky and that the applicant agrees to abide by the rules, duties and standards imposed upon attorneys of this state, (b) Applicant must further file proof that the district or state from which the applicant applies and in which the applicant performs the major portion of his professional activities has rules or other provisions providing for admission without examination and by reciprocity or comity which are at least equivalent to this rule 2.110 and all other pertinent rules of this jurisdiction.

The action of the respondent Character and Fitness Committee of the Kentucky Board of Bar Examiners was proper under the rules which existed at the time of application, and is hereby affirmed. However, when the amended rules become effective on January 1, 1988, the movant’s present application shall be reconsidered with no re-application necessary, and movant shall be given credit for any fees previously paid and not refunded.

 

 

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