Kentucky Bar Ass'n v. Deters

• Decision Date: 23 February 2012
• Docket Number: No. 2011–SC–000641–KB.,2011–SC–000641–KB.
• Citation: 360 S.W.3d 224
• Parties: KENTUCKY BAR ASSOCIATION, Movant, v. Eric DETERS, Respondent.
• Court: United States State Supreme Court — District of Kentucky

360 S.W.3d 224

KENTUCKY BAR ASSOCIATION, Movant,

v.Eric DETERS, Respondent.

No. 2011–SC–000641–KB.

Supreme Court of Kentucky.

Feb. 23, 2012.

OPINION AND ORDER

Pursuant to SCR 3.370,¹ Eric C. Deters, KBA Member No. 81812, 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. Deters was admitted to the practice of law in Kentucky on October 10, 1986 and his bar roster address is 5247 Madison Pike, Independence, Kentucky 40151.

The Board found that Deters violated SCR 3.130–8.2(a), SCR 3.130–3.3(a), SCR 3.130–7.09(2), and SCR 3.130–1.16(d), and recommended he be suspended from the practice of law for sixty-one days and attend remedial ethics training. After reviewing the record, we agree with the Board's findings, adopt their recommendation, and reject Deters' miscellaneous arguments.

I. BACKGROUND

The Inquiry Commission charged Deters with nineteen counts of misconduct based upon six KBA files and then issued an order consolidating the files on March 20, 2009. On August 19, the Chief Justice appointed Frank Doheny as the trial commissioner, who later rejected Deters' motion seeking his recusal.²

Following an evidentiary hearing, the trial commissioner issued a report finding Deters guilty of sixteen of the nineteen counts and recommending that he be suspended from the practice of law for one hundred eighty-one days. Pursuant to SCR 3.370(6),³ the Board of Governors rejected the commissioner's report and reviewed the files de novo.⁴ The Board now recommends that this Court find Deters guilty of four of the nineteen counts and suspend him for sixty-one days. However, because the Board rejected the commissioner's report and considered the case de novo, it made no ruling on the recusal issue.

We pause now to review each relevant file.⁵

A. KBA File 16024

On January 15, 2008, Deters represented the plaintiff in a matter in which Grant County Circuit Court Judge Stephen Bates entered summary judgment in favor of the defendants. After the defendants subsequently sought sanctions pursuant to CR 11, Deters moved to recuse Judge Bates and filed a supporting affidavit containing multiple allegations of bias. Specifically, Deters alleged that he had never won a contested motion of importance before Judge Bates, that the judge knew Deters had contributed money to his opponent in a previous election and therefore ruled against him, and that the judge never looked him in eye. Deters further claimed that “the obvious retention of Ruth Baxter as counsel for Defendants is to have the ‘insider’ with Judge Bates” and that he “believes counsel sought ex parte knowledge of the Summary Judgment to file their Motion prior to a Notice of Appeal.”

In addition to the affidavit, Deters made statements on air during a broadcast of Cincinnati radio station WLW 700AM on January 24 and January 25. In so doing, he again asserted that his opposing counsel, Ruth Baxter, was aware that Judge Bates was going to enter summary judgment three months before the order was filed.

On January 25, Judge Bates recused himself from the case. Nonetheless, Deters filed a second affidavit containing additional allegations three days later. The second affidavit specifically addressed the judge's daughter-in-law's domestic case, even though neither his daughter-in-law nor her ex-husband had anything to do with the case in which Deters sought recusal.

The Inquiry Commission thereafter charged Deters with violating SCR 3.130– 4.4 ⁶ and SCR 3.130–8.2(a).⁷ The trial commissioner subsequently found Deters guilty of both charges. On review, the Board of Governors agreed that Deters had violated SCR 3.130–8.2(a) based upon Deters' statements concerning Judge Bates. The Board, though, found him not guilty with respect to SCR 3.130–4.4.

B. KBA File 15674

On January 17, 2007, the minor son of Richard and Stacey Clise was injured in a bus crash Grant County. Richard and Stacey had divorced several years earlier, but were still litigating visitation; Stacey was represented at some point in the divorce proceedings by Deters.

Six days after the crash, Deters contacted Richard by telephone as he was standing next to his son's hospital bed. During that call, Deters informed Richard that Stacey had hired him to file suit on behalf of the child and offered to reduce his fee if Richard hired him. Richard responded that he did not want to hire him, and did not want to discuss the matter at that time.

Undaunted, Deters placed six or seven additional calls to Richard, but Richard never returned his calls. Moreover, Deters attempted to send Richard a letter on February 5, 2007, which stated that he would be filing a joint motion requesting that Richard and Stacey be named legal guardians of their son and that Richard should call him for more information.⁸ Additionally, the letter repeated Deters' earlier offer to discount his fee.

Richard subsequently hired a lawyer other than Deters to represent him and the child. On February 6, 2007, Deters sent Richard's attorney two forms he had filed on behalf of both Stacey and Richard, requesting that they be appointed co-guardians of Jacob.⁹ Richard, though, had never asked Deters to file the petition on his behalf and was “shocked and surprised” to see it. In fact, Richard did not want to be appointed co-guardian with his ex-wife.

On February 20, 2007, Deters filed suit against the lawyers representing Richard in the civil suit, alleging that they had represented Stacey in her divorce from Richard and thus had a conflict of interest if that representation involved a contested guardianship proceeding. Deters then attempted to contact one of Richard's attorneys to discuss the lawsuit. Ruth Baxter, who had been retained by the attorneys to represent them in the suit filed by Deters, returned his call. Deters told her that, if her clients would join him in representing the Clise family in the bus crash case, he would drop the lawsuit he filed against them. Deters also told Baxter that Stacey, his client, had signed a bar complaint against Richard's attorneys, although it would not be filed if they could resolve their differences.

On August 23, 2007, Richard filed a bar complaint against Deters, and the Inquiry Commission thereafter charged him with violating SCR 3.130–3.3(a),¹⁰ SCR 3.130– 3.4(f),¹¹ SCR 3.130–4.2,¹² and subsections (1) ¹³ and (2) ¹⁴ of SCR 3.130–7.09. The trial commissioner subsequently found that Deters “at least” violated SCR 3.130–4.2 and subsections (1) and (2) of SCR 3.130–7.09.¹⁵ On review, the Board of Governors found that Deters had violated SCR 3.130–3.3(a) and SCR 3.130–7.09(2). The board, though, found him not guilty with respect to SCR 3.130–3.4(f), SCR 3.130–4.2, and 3.130–7.09(1).

C. KBA File 15745

On May 10, 2007, Slavko and Slavica Radakovic retained Deters to represent them in a property line dispute and harassment case against their neighbor. The Radakovics paid Deters $1,500 and agreed to assign him the claim to any award from a judgment in their favor. Although there is some confusion as to whether the parties discussed whether the fee was refundable,¹⁶ the record indicates that the fee was to cover the entire case (including trial) and there was no written fee agreement.

Less than two months after he was hired, Deters moved to withdraw from the case due to allegedly irreconcilable differences with his clients. The Radakovics received neither a refund nor an accounting of how the fee was used, although both were requested. The Radakovics then filed a small claims complaint against Deters, which he paid $500 to settle.

On September 24, 2007, the Radakovics filed a bar complaint against Deters and the Inquiry Commission thereafter charged him with violating SCR 3.130–1.5(c),¹⁷ subsections (a),¹⁸ (b),¹⁹ and (c) ²⁰ of SCR 3.130–1.15, and SCR 3.130–1.16(d).²¹ The trial commissioner subsequently found that Deters violated SCR 3.130–1.5(c) and subsections (a), (b), and (c) of SCR 3.130–1.15.22. ²² On review, the Board of Governors found that Deters had violated SCR 3.130–1.16(d). The Board, though, found him not guilty with respect to SCR 3.130–1.5(c) and subsections (a), (b), and (c) of SCR 3.130–1.15.

II. ASSESSMENT OF GUILT

Upon review of the record, we agree with the Board that Deters violated SCR 3.130–8.2(a), SCR 3.130–3.3(a), SCR 3.130–7.09(2), and SCR 3.130–1.16(d).²³

A. SCR 3.1308.2(a)

SCR 3.130–8.2(a) states that “[a] lawyer shall not make 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....” The Board found Deters guilty of violating this rule based on his statements concerning Judge Bates as described in KBA File 16024.

Deters argues that he did not make any false statements about Judge Bates. Moreover, he contends that he never called Judge Bates any names and simply asked how his opposing counsel knew to file a Rule 11 motion on the same day the judge entered summary judgment.

We believe Deters made multiple statements in violation of SCR 3.130–8.2(a). Specifically, Deters alleged that Judge Bates knew he had contributed money to the judge's opponent in previous election and therefore ruled against him. Moreover, Deters repeatedly asserted (or at least suggested) that Ruth Baxter and Judge Bates had ex parte contact concerning the summary judgment. As such, we agree with the Board's findings with respect to SCR 3.130–8.2(a).

B. SCR 3.130–3.3(a)

SCR 3.130–3.3(a) states that “[a] lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal....” The Board found Deters guilty of violating this rule based on the guardianship pleadings he filed on behalf of both Stacey and Richard as described in KBA File 15674.

Deters argues that the petition form was typed and prepared by his secretary and reviewed by him, but signed only by his client, Stacey. According to...