CHARACTER AND FITNESS COMMITTEE TORPEDOES BAR COUNSEL’S MOTION TO DENY AUTOMATIC REINSTATEMENT TO ATTORNEY ERIC DETERS – Never-the-less, the Bar Counsel by gaming the system, continues to keep Deter’s swinging slowly in the wind.

The Character and Fitness Committee, a body appointed by the Supreme Court, has conducted a hearing on a motion filed by the KBA Bar Counsel’s Office to deny the automatic reinstatement to the practice of law by Eric Deters. The rules say that any period of suspension of less than 180 days allows the automatic reinstatement of the lawyer after he has served his sentence of suspension. However, there is a rule that allows the Bar Counsel to ignore the sentence of the Supreme Court and to deny automatic reinstatement. This rule, SCR 3.505 (see below), imposes on the defendant attorney the burden to prove his fitness for reinstatement. In most prosecutions, the accuser has the burden of proof, but in attorney discipline procedures, the burden of proof is placed on the defendant lawyer. This obscure rule in effect submits the attorney to double jeopardy. He can be tried and sentenced, and then tried and sentenced again.

The Character and Fitness Committee ruled against the Bar Counsel , and slapped down their motion to extend Deters suspension of 61 days (imposed by the Ky. Supreme Court). (If we gain access to that ruling we will publish it.)

SCR 3.510(3) requires that the ruling of the Character and Fitness Committee must now be referred to the KBA Board of Governors, and then reviewed by the Ky. Supreme Court. That could extend Deters suspension for months….thereby allowing the Bar Counsel to have the last laugh. Any system of justice that allows a prosecutor to unilaterally add to the sentence of the court is troubling.

In the attorney discipline process, the Supreme Court upheld the original finding of the Board of Governors recommending dismissal of l5 of l9 charges brought against Deters by the Bar Counsel, and the Court imposed a 61 day suspension of Deters.

Deters accepted that suspension, but then the Bar Counsel’s Office used a little known SCR that allowed them to object to the automatic reinstatement of Deters after he had served his 61 day suspension sentence.

The rule provides that the Character & Fitness Committee must then investigate and rule on the Bar Counsel’s motion to deny automatic reinstatement.

Deters made a public statement on his radio show that suggested that the Bar Counsel in an attempt to enhance the penalty imposed by the Supreme Court, attacked his political statements and questioned his humility in defending himself, in their brief submitted to the Character and Fitness Committee.

We have found no Supreme Court Rule which grants the KBA the right to judge the character of an attorney based on his political views. We have not seen the ruling of the Character and Fitness Committee and do not know if they specifically ruled on the KBA’s attack on Deters political beliefs, but if they didn’t they missed a good opportunity to protect the rights of all attorneys.

The Bar Counsel’s actions are viewed by some as retaliation for Deters vigorous defense against the complaints prosecuted by the Bar Counsel. We note that prosecutors have the duty to be “Ministers of Justice”. Many attorneys are wondering if that duty has been fulfilled by the Bar Counsel’s office. We recall that when Linda Gosnell was dismissed by the Board of Governors, that one statement floating around Frankfort, suggested that one of the reasons for Gosnell’s discharge was “excessive prosecution” by her office. Perhaps the Board of Governors should now review the conduct of those Bar Counsel Office members responsible for the continued prosecution of Deters.

The Bar Counsel argued against the automatic reinstatement of Deters right to practice law and even filed six new complaints shortly before the Character and Fitness Committee conducted their hearing re: Deters. The Bar Counsel presented these new charges (brought just days before the Character and Fitness Committee hearing) to support their argument to the Character and Fitness Committee that Deters should not be reinstated. How can they attack an attorney on charges on which were only recently filed and in which there has been no hearing or findings supporting these new allegations? Apparently the Character and Fitness Committee was not impressed by any of the Bar Counsel’s arguments. In dismissing the Bar Counsel’s motion the Character and Fitness Committee demonstrated a great deal of back bone.

Deters continues to vigorously defend himself against these six new charges and reports that there are many factual errors contained in these new complaints.

The Bar Counsel argued to the Character and Fitness Committee that Deters did not show sufficient “humility” over his conviction on 4 counts. We have found no authority that says an attorney who is disciplined must be ”sufficiently humble” to satisfy the Bar Counsel’s Office.

We find it troubling that after the Bar Counsel lost their argument on l5 of l9 counts against Deters, they continue to pursue him with more and more claims. After the lengthy investigation of Deters why didn’t they bring these charges before? Unfortunately there is no statute of limitations on claims brought by the Bar Counsel. We concede that the Bar Counsel may bring any claim if they believe they are supported by the law and facts. But when will this end?

The record reveals that the Bar Counsel claimed $44,000 in attorney’s fees in the prosecution of Deters, and that was before they filed their objection to his automatic reinstatement as ordered by the Supreme Court. How much more has the Bar Counsel expended of our dues money to pursue this attack on Deters?

We would hope that as some time the Board of Governors would ask the question of the reasonableness of the Bar Counsel in expending additional time and money to go after Deters.

In any real litigation, there is usually an evaluation by some adult, as to whether or not the expenditure of additional funds is justified in questionable cases. The Board of Governor’s has the power to be that “adult” reviewer.

We suggest that the Board of Governors has demonstrated their independence by acquitting Deters of l5 counts out of l9, but will they now allow the penalty to be greatly enhanced? They must meet to consider the ruling of the Character and Fitness Committee and that will then go back to the Supreme Court for review, and in the mean time Deters is left slowly twisting in the wind. So even though the Bar Counsel’s effort to deny reinstatement to Deters was a failure, they still end up the winner, due to the burdensome systemic rules regarding attorney discipline procedures. The Board of Governors could and should call an immediate hearing to consider the ruling of the Character and Fitness Committee, and to refer the matter to the Supreme Court before the Court takes its July recess. This would quickly resolve most issues.

The Bar Counsel has hurt Deters practice, they have hurt his reputation, they have already caused him to have more than 30 additional days of suspension added to the sentence of the Supreme Court…and there will undoubtedly be additional days of suspension until all the procedures are completed.

Larry Forgy of Lexington predicted that the actions of the Bar Counsel’s office to continue to try to disbar Deters “are not over”. Their past conduct suggests that they will ignore the message sent to them by the sentence of the Board of Governors, the sentence of the Supreme Court and now by the ruling of the Character and Fitness Committee.

The acts of the Bar Counsel reminds us of the quote of the Wicked Witch in the Wizard of Oz, “I’ll get you, my pretty…and your little dog too!”

Every Kentucky attorney would be wise to be concerned about the Deter’s case. Today it is Eric Deters, but tomorrow it may be you.

The need for reform of the attorney discipline process cries out for quick action by the Supreme Court.

Notes:

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.”

NEWS FLASH:

The Board of Governors has set a hearing for review of the Character & Fitness Committee ruling for June 5, 2012.

 

Comments

  1. mark
    3:04 pm on May 24th, 2012

    Roses to the Character and Fitness Committee!! Now the Board should deal with the Bar Counsel’s office!

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