Kentucky Bar Ass'n v. Getty

Decision Date17 January 1975
Citation535 S.W.2d 91
PartiesKENTUCKY BAR ASSOCIATION, Complainant, v. Richard J. GETTY, Respondent.
CourtUnited States State Supreme Court — District of Kentucky

Leslie G. Whitmer, Director Kentucky Bar Association, Frankfort, for complainant.

Raymond Francis Connell, Robert J. McDaniel, Paris, for respondent .

PER CURIAM.

This disciplinary matter is before the court on a recommendation that Richard J. Getty be suspended from the practice of law in this state for a period of one month, and that he pay the costs of this action.

A charge was filed against Getty by the Kentucky Bar Association on May 3, 1973, consisting of six counts relating to his conduct as defense counsel in the case of Commonwealth of Kentucky v. Lance Kohler, Fayette Circuit Court. On August 2, 1973, an additional charge was filed against Getty. This charge consisted of four counts relating to Getty's conduct as defense counsel in the cases of Commonwealth v. Campbell, Harrison County Court; Commonwealth v. Morgan, Nicholas Circuit Court; and Commonwealth v. William Highlander, Jr., Nicholas County Court. On August 2, 1973, the Inquiry Tribunal ordered the two charges consolidated to be tried as a single disciplinary action. RCA 3.260. Getty filed responses to each of the charges.

A three-man trial committee appointed by the President of the Kentucky Bar Association conducted hearings in which Getty and his counsel participated. The trial committee found Getty not guilty on all charges and recommended to the Board of Governors of the association that all counts, on both charges, were not proven by a preponderance of the evidence and should be dismissed.

The Board of Governors considered the trial committee's report, reviewed the record, and recommended to this court a finding of not guilty on all counts except count 1 of the second charge. On that count, the Board of Governors recommended a finding of guilt and stated:

'In the Harrison County Court case styled Commonwealth v. Campbell, Richard J. Getty, during his representation of the defendant Campbell at trial on or about March 27, 1973, called County Attorney John M. Keith a 'damm liar' on two occasions out of the presence of the jury. After repeated admonishment of County Judge Carl Nunnelley regarding respondent's remarks and attitude toward witness State Trooper John Conley continued his badgering and harassment of witness Conley. After the noon recess, respondent attempted to use a chart or card which indicated the amount of alcoholic beverage a person of a certain size could use without being under the influence of alcohol. Respondent laid no foundation for the introduction of the card into evidence. Under the repeated objection to the introduction of said evidence by County Attorney John M. Keith, respondent continued his badgering and questioning in a loud and boisterous manner, completely ignoring the court and accused the court of attempting to influence the jury against respondent's client. During this latter event, respondent pointed his finger at the court in a very disrespectful and threatening manner after being admonished by the court to desist. Respondent's conduct during the trial caused the court to declare a mistrial and find respondent in contempt of court for his boisterous haranguing and contemptuous attitude toward the court.'

Getty's arguments on appeal are:

1. The findings of the trial committee as to all charges were supported by substantial evidence and conclusive of his innocence.

2. The recommendation of the Board of Governors should be set aside because it failed to submit separate findings of fact and conclusions of law contrary to those of the trial committee.

3. The costs should be fairly apportioned.

4. His conduct was not such as to warrant punishment.

5. The Board of Governors erred in permitting counsel for the Kentucky Bar Association to be present at their meeting when Getty's counsel was not permitted to be present or heard.

This court has reviewed the 10 volumes of evidence heard by the trial committee and considered by the Board of Governors. The charge against Getty consisting of six counts relating to his conduct as defense counsel for Kohler in the Fayette Circuit Court is not supported by substantial evidence. The record is clear that the primary witness for the Kentucky Bar Association was Lance Kohler. The trial committee found that the evidence in the first six counts in the complaint was a swearing contest between Getty and Kohler. It noted that Kohler is a disbarred attorney, presently serving a sentence in the penitentiary for the sale of narcotics. In its findings of fact concerning Getty's representation of Kohler, the trial committee applied the standards enunciated by this court:

'In general, the veracity of witnesses is to be determined by (1) Their appearance on the stand, and their character insofar as their character bears upon the question of their probable willingness to lie; (2) The evidence or non-evidence of a motive for falsification; and (3) The collateral undisputed facts bearing upon the intrinsic probability of the truth or falsehood of the testimony given.' In re Hargis, 30 Ky. 276, 190 S.W .2d 333 (1945).

This court deems it unnecessary to dwell upon the incredible testimony of Lance Kohler. The trial committee did not believe him. The Board of Governors found his testimony lacking. This court concurs in these findings. The allegations contained in Counts I through VI of Charge 1 were not established by a preponderance of the evidence. Therefore the action of the trial committee and the Board of Governors as to these counts was correct and this court concurs in the recommendations of the Board of Governors by a vote of 9-- 3 that Getty 'be adjudged not guilty on the provisions of the charge filed May 3, 1973.'

Before proceeding to consider the other charges against Getty, this court reaffirms its position with respect to the roles of a trial committee and the Board of Governors in a disciplinary proceeding.

'The report and recommendations of the trial committee are only advisory to the Board of Governors, as are the Board's recommendations to this court. RCA 3.400, 3.420 (now RCA 3.360, 3.370). This means, of course, that in the end this court must be judge of the factual as well as the legal issues and of the final action to be taken. The role of fact-finder is neither welcome nor comfortable to an appellate court, but obviously we have saddled it upon ourselves by our own rules for this type of proceeding Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900 (1972).

Count No. I of Charge 2 concerned the conduct of Getty in his representation of Alvin Campbell in the Harrison County Court. Campbell was charged with...

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3 cases
  • Getty v. Reed, s. 76-1633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 8, 1977
    ...as to both guilt and penalty. Getty was found guilty of abusive conduct and speech in four state court trials. Kentucky Bar Association v. Getty, 535 S.W.2d 91 (Ky.Ct.App.1975), cert. denied, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636 (1976). In the Getty case appellant attacks his six mon......
  • Kentucky Bar Ass'n v. Heleringer
    • United States
    • United States State Supreme Court (Kentucky)
    • July 15, 1980
    ...and derogatory conduct can only serve to bring the judicial system into discredit in the public mind. See also Kentucky Bar Association v. Getty, Ky., 535 S.W.2d 91 (1975) cert. denied, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636. We are not alone in our opinion that by coming to the bar an......
  • Getty v. Reed, 80-3489
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 1982
    ...is revealed by its statement that "Getty's misconduct in the courtroom indicates that he has failed to honor the law." Kentucky Bar Ass'n v. Getty, (535 S.W.2d) at 94 (emphasis added). Therefore, the Kentucky court would have suspended Getty based solely on permissible reasons, that is, Get......

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