Attorney Eric Deters Expands Fight to Limit Discretionary Power of Bar Counsel to Overrule Sentence Imposed by Ky. Supreme Court. Original Action Filed in Ky. Supreme Court to Limit Powers of Bar Counsels Office.

By LawReader Senior Editor Stan Billlingsley

Last week Deters objected to SCR 3.505(1)(b) which allows the Bar Counsel to deny his automatic reinstatement after he had served a 61 day suspension imposed by the Ky. Supreme Court. Deters filed a civil action in the Franklin Circuit Court. The Bar Counsel’s office of the KBA filed a pleading arguing that the jurisdiction for such a motion was not in the Circuit Court but required an original action in the Supreme Court. Deters then sought dismissal of the Circuit Court petition for injunctive relief, and filed an original action in the Kentucky Supreme Court (citing the legal argument of the KBA which argued that the relief Deters seeks can only be considered by the Supreme Court.)

In Deters filings this week, he seeks an order finding the Interim Bar Counsel (Jay Garrett) and his chief prosecutor (Sarah Coker) in contempt.

In his original action filed with the Ky. Supreme Court, Deters contests the delegation of the Supreme Court’s sentencing power to the ethics prosecutor.

Deters defended l9 ethics counts, and the Board of Governors of the KBA dismissed l5 of the l9 counts, and the Supreme Court upheld the Board of Governors and limited the period of Deters suspension to 61 days. Deters argues that the Bar Counsel, having lost l5 of l9 counts against Deters, is merely being vindictive. They apparently brought five new complaints against Deters after they lost most of their counts before the Board of Governors.

The Bar Counsel argues that since Deters has five new charges pending against him that he should not be restored to the right to practice law. All of these counts apparently existed before the hearing on the original l9 counts. Deters appears to be arguing that the Bar Counsel’s Office is angry over their substantial set back on the original l9 counts, and now seek to obtain punishment against Deters for counts on which he has not been tried and for which he has not been found to have violated any ethics rules. The Bar Counsel  argues that if they merely file new charges, that the attorney should be punished with an extended suspension and he should be punished prior to any hearing.

Deters argues that the five new counts recently filed by the Bar Counsel do not allege any dishonesty, any fraud, any misapplication of client’s funds, and instead merely assert technical violations involving angry clients. The Bar Counsel has not announced any justification for not bringing these five new counts at the same time they brought the original l9 counts.

If Deters wins these five new counts, will the KBA merely bring other counts until they finally get their man?

The Bar Counsel pursuant to SCR 3.505(1)(b) is apparently granted the unregulated discretionary power to extend periods of suspension previously entered by 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 remain suspended until he has gone through a hearing before the Character and Fitness Committee.   This hearing may not be completed for months. This additional hearing imposes on the attorney the burden of proof to prove his fitness to practice law. Therefore the automatic reinstatement provided for in the SCR’s is overruled merely by the request of the Bar Counsel’s Office.   Deters has asked the Character and Fitness Committee to expedite their hearing.

The effect of this rule is that Deters is receiving punishment (an extended period of suspension from the practice of law) without first having had a hearing to determine the necessity or justification for the imposition of this penalty. It is a classic case of punishment without hearing or trial. Deters argues in his Supreme Court motion for injunctive relief that this is a denial of his constitutional due process rights.

Deters has served his 61 day period of suspension , but the motion of the Bar Counsel will deny Deters automatic reinstatement for an indefinite period of time.

This procedure is claimed by Deters, in his Supreme Court filing 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. Deters cites authority that an attorney has a property right in his law license and that the unilateral suspension from the right to practice law, merely on the motion of the prosecutor is unconstitutional.

LawReader finds the filing of an original action in the Supreme Court to be a novel solution to this problem. We note that the Supreme Court is the administrator of the KBA attorney discipline machine, and this conflicts with their role as a judicial body. Are they an appellate court or are they administrators? The Supreme Court is presented the opportunity to right many questionable actions of the Bar Counsels Office.

In Eric Deters petition to the Ky. Supreme Court, he alleges that an attorney has a property interest in his law license and before it may be taken from him he is entitled to Due process rights.

Deters has filed a brief which details authority for the conclusion that a law license is a property right, and that an attorney is entitled to a due process hearing before he in punished.

We have never heard of another procedure where after a Court has issued a sentence, that the prosecutor can merely write a letter and suspend an attorney’s right to practice law.

We note that the Kentucky Supreme Court has the jurisdiction to create Bar Rules, and they have the jurisdiction to fix this problem.

 

SUPREME COURT OF KENTUCKY

INQUIRY COMMISSION

KBA 15674, 15681, 15745, 15859, 16024 & 16795

 

IN RE: ERIC C. DETERS

 

KBA MEMBERSHIP NO. 81812

 

BAR ROSTER ADDRESS: 5247 Madison Pike

Independence, Kentucky 41051

 

* * * * *

 

MOTION FOR CONTEMPT AGAINST JAY GARRETT AND SARAH COKER

 

 

Jay Garrett and Sarah Coker’s conduct in this matter both supports the due process problem with SCR 3.510 and reflects contempt for this Court. SCR 3.510 provides Interim Bar Counsel and Associate Bar Counsel the power to unilaterally in essence overrule a Supreme Court Order. These are the same lawyers who prosecuted and lost 15 of 19 Bar Charges against Deters. These same lawyers have the power to question Deters fitness to practice law when they are the ones not fit to work as Bar Counsel.

It is expected that the provisions of SCR 3.510 Deters asserts are unconstitutional is a rule passed at the urging of Bar Counsel who wanted more power and the Court didn’t realize the abuses which would occur.

Did the Supreme Court really want, and does this Court realize, SCR 3.510 gives Bar Counsel the unilateral power to overrule a Supreme Court Order?

Armed with this power, can there be any question that Bar Counsel would abuse the power?

The entire reason for due process is to protect individuals from the abuse of power.

Bar Counsel and the KBA argue the due process of Respondent Deters for SCR 3.510 is the Character and Fitness Process of SCR 2.300. This is a ridiculous argument since Bar Counsel gets to punish without any process. Due process is not a hearing after the damage is done.

Bottom line—Bar Counsel can unilaterally extend a suspension. It is wrong and in Deters case it is Exhibit A of how it can be abused.

What is remarkable and further proof of the due process problems with SCR 3.510, Bar Counsel is forcing a Character and Fitness review when Deters has not even been accused or found guilty of any issue involving Character and Fitness. Both these matters do not involve the issue of competence, dependency addiction, theft, crime, dishonesty, moral turpitude, or any issue of character or fitness.

Bar Counsel pursued 19 charges against Deters. 15 of those were dismissed by the Board and sustained by the Court. Deters has 90 days from February 23, 2012 to filed a Motion for Certiorari before the U.S. Supreme Court on the issues raised including the First Amendment issues. Deters chose not to file same. However, if SCR 3.510 is not found unconstitutional, Deters has no choice to but elect that procedural option. None of this would be an issue if Jay Garrett and Sarah Coker would have simply allowed Deters to serve his suspension in peace. But no. Consumed with their desire to get Deters, they couldn’t wait ten days to file an Objection with false and premature allegations.

To Deters chagrin, both the Board and this Court unfairly failed to factor in Deters had to fight 15 baseless charges and all the negative publicity received from the Trial Commissioner’s unjust finding of 19 guilty charges and a 181-day suspension.

However, Deters decided to accept the 61 days. Will the Court allow Coker and Garrett to keep stirring up this matter and giving Deters no options but to fight back? Is it unreasonable to assume Bar Counsel, Garrett and Coker, were smarting from losing their prosecution of Deters (15 dropped/120 days dropped)? No.

And we have proof they did. Why? The Objection they filed to block Deters automatic reinstatement. Noticeably absent from the Objection is any allegation Deters practiced law the last 61 days, the thrust of the Order. Furthermore, the basis for the Objection are either false statements or premature conclusions not giving Deters the opportunity to comply under the time frame allowed. It’s outrageous.

Summary of Objection

1. Bar Counsel objected to the costs not being paid as Ordered by the February 23, 2012 Order. The Order did not give a time frame to pay the costs and Deters acknowledged he gave the instruction after February 28 for his secretary to pay the costs on March 15 when she would pay bills. Deters spent a week or so digesting it; exploring options; receiving advise. He began his suspension while he did. The office pays bills on the 15th and 30th of each month.

Bar Counsel used a baseless nit picky reason to object. On March 7, they objected based upon the costs not being paid in ten days?

Deters secretary, Maria Dallas, couldn’t even obtain from KBA who the check should be written to and where it should be sent.

2. Bar Counsel objected to the CLE’s not being obtained. Again, the KBA was uncooperative in providing information.

Deters had until April 23 to obtain his full 12.5 CLE’s and the Supreme Court gave him a year to obtain the remedial ethics CLE’s. He’s registered to do so in June.

Therefore, Bar Counsel used a premature baseless reason to object. They couldn’t even wait ten days.

3. Bar Counsel objected Deters had not notified his clients and Courts about his suspension within ten days. Deters timely did and presented written proof. Yet, another baseless reason for the Objection.

It’s important to note that Bar Counsel never wrote, called or emailed Deters to ask about any of these issues before filing the Objection. Maybe it’s not a requirement, but wouldn’t it be common sense and a matter of professional courtesy.

(Furthermore, Deters or counsel has never received anything from Bar Counsel withdrawing the basis for the Objection they know are baseless or fulfilled.)

4. Bar Counsel used as a basis for the Objection that Deters was advertising. They submit a reference as Deters as a Kentucky lawyer on a website and newsletter.

Advertising? An inadvertent reference? The attached details how Deters did all he could to comply. In addition, Deters submits an affidavit of Brad Amster, his web designer outlining his compliance.

Advertising: Definition- The activity of attracting public attention to a product or business, as by paid announcements in the print, broadcast, or electronic media.

Deters did not air television ads, radio ads, direct mail ads, newspaper ads and ads on social media and he took down his law office website. He then modified the website and only put back his home page.

And again, Bar Counsel never called, wrote or emailed to point out an issue and give Deters a chance to respond. Another example of the importance of due process.

5. Finally, Bar Counsel references other bar complaints and two bar charges as an excuse for the objection. Deters fully explains all those

It’s important enough to insert them again here:

Pending Bar Matters

A. Jessica Meyer- Dismissed Before Charge

B. Melissa Altman- Dismissed Before Charge

C. Fired Lawyer- Baseless bar complaint. Not a charge. Expect dismissal. Deters fired this lawyer for misconduct and the lawyer filed a bar complaint against Deters knowing Deters plans on suing the lawyer for money owed. It’s pending so no name is given.

D. Judge Danny Reeves Matter- Deters received a private admonition Deters was tempted to appeal. Bar Counsel lied and said Judge Reeves initiated a complaint on a lawsuit Deters filed. Deters confirmed from Judge Reeves he did not initiate the complaint. Then Bar Counsel simply obtained a private admonition. Deters accepted for closure.

E. Pending Matter- A bar charge Deters contested and Deters is contesting so no name will be given. The Trial Commissioner has not rendered a decision. Bar Counsel has asked for a public reprimand.

F. Fee dispute with Ohio client- Baseless bar complaint Bar Counsel has refused to just dismiss. Even Ohio dismissed it. Deters actually filed a Declaratory Judgment Action in Ohio to obtain his fee. The client threatened and filed the complaint hoping it would deter Deters from collecting his earned fee. No name will be given since its pending.

G. Pending Matter- Baseless Bar complaints involving a lawsuit Deters filed nearly ten years ago on a jail inmate’s medical treatment supported by one of the top experts in the country. Bar Counsel knows the matter is before the Kentucky Supreme Court and should not do anything based upon their own policies. Yet, they file it anyway. Pending, so no name.

H. Eight year old matter pending- Appeal to Board of Governors filed Friday. Pending, so no name.

I. All of these but the one referenced in paragraph 45 is a result of the public’s knowledge of Deters bar fight with Kentucky Bar Counsel.

Again, another example of the abuse of SCR 3.510 by Bar Counsel and the lack of due process. Who controls how fast a bar complaint moves? Bar Counsel. Who controls what bar complaints to present to the Inquiry Commission. Bar Counsel. Who recommends a disposition and punishment? Bar Counsel. Jay Garret and Sarah Coker are in a position to unilaterally block Deters’ reinstatement? Two lawyers have that much power? That’s due process? The basis for this Motion is they filed an Objection on baseless grounds. If one of those grounds were baseless, they should be held in contempt. Why did Bar Counsel file the Objection? Because they could.

It’s why Deters Motion was filed to appoint Special Counsel on his matter.

Conclusion

How scary is Bar Counsel’s conduct? It is contained in pleadings they filed in reference to Character and Fitness:

“Such a hearing will provide Mr. Deters with due process if he does, in fact, have a protected “right” to reinstatement.”

It is revealed! Despite no issue dealing with addiction, dependency, committing any criminal act, dishonesty, theft or moral turpitude, Bar Counsel wants to keep Deters from ever practicing law in Kentucky again. How can the Supreme Court accept Bar Counsel’s conduct?

 

_______________________________

Charles H. Deters

12581 Green Road

Walton, Kentucky 41094

 

________________________

Lawrence E. Forgy, Jr.

83 C. Michael Davenport Blvd.

P.O. Box 4292

Frankfort, KY 40601

(502) 227-3155

 

 

CERTIFICATE OF SERVICE

 

I do hereby certify that a true and exact copy of the foregoing was sent via regular U.S. mail, postage prepaid, on this ______ day of April 2012, to Bonnie Kittinger, Director and General Counsel, Character and Fitness Committee, Suite 156, 1510 Newton Pike, Lexington, Kentucky 40511-1255; Sarah V. Coker, Esq. Deputy Bar Counsel, Kentucky Bar Association, 514 West Main Street, Frankfort, Kentucky 40601, John Meyer, Kentucky Bar Association, 514 West Main Street, Frankfort, Kentucky 40601, and Mark Overstreet, Stites and Harbison, 421 West Main Street, P.O. Box 634

Frankfort, KY 40602-0634.

 

 

 

_______________________________

Lawrence E. Forgy, Jr.

 

 

 

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