Ky. Bar Ass'n v. Blum
| Citation | 404 S.W.3d 841 |
| Decision Date | 29 August 2013 |
| Docket Number | No. 2012–SC–000825–KB.,2012–SC–000825–KB. |
| Parties | KENTUCKY BAR ASSOCIATION, Movant v. Jeffrey M. BLUM, Respondent. |
| Court | United States State Supreme Court (Kentucky) |
OPINION TEXT STARTS HERE
Jeffrey Michael Blum 1 appeals from the unanimous decision of the Kentucky Bar Association Board of Governors finding him guilty of four counts of professional misconduct and recommending a 181–day suspension from the practice of law with the conditions of impairment assessment and ethics training. The professional misconduct charges stem from Blum's nearly decade-long handling of a teacher-termination dispute, which was litigated in various state and federal forums. Upon review, we adjudge Blum guilty of three of the four charges and impose the recommended discipline.
In 1996, the Harlan County School Board convened an administrative tribunal to hear charges against David H. Dixon, a certified teacher at Cumberland High School within the Harlan County School District. School administrators recommended terminating Dixon's contract after discovering that he had taken inappropriate photographs of one of his female students. The tribunal unanimously found Dixon guilty of conduct unbecoming a teacher and, by a 2–1 vote, upheld the recommendation to terminate Dixon's contract.
Dixon appealed the decision to the Harlan Circuit Court. After an approximate eight-year delay, Special Judge R. Cletus Maricle, ordered the case remanded to the tribunal upon a finding that the instructions given to the tribunal by the hearing officer were erroneous and that additional mitigating factors should be considered in determining the penalty. Dixon appealed the order to the Court of Appeals, which dismissed it as premature Following the remand order, Hearing Officer James L. Gay of the Attorney General's Division of Administrative Hearings began the process of convening another administrative tribunal by issuing a prehearing conference order in April 2005. In the order, Gay stated that the hearing would not be a hearing de novo because Judge Maricle's order did not authorize the taking of additional proof. Accordingly, the administrative tribunal on remand would confine its consideration to the appropriate penalty to be imposed, Dixon's guilt having been decided by the first tribunal.
Blum began representing Dixon at some time between the 1996 tribunal hearing and the Harlan Circuit Court's remand in 2004. Gay's pretrial order in 2005 was the flash point for Blum, triggering a course of conduct that led to disciplinary charges against Blum. Blum's filings throughout the course of the administrative proceedings consisted of personal attacks against Gay and his successor, Deputy Attorney General Michael Head; denunciations of incompetence and corruption in the Office of the Attorney General; and bombastic threats and arguments.
Dixon's second administrative tribunal hearing convened with Deputy Attorney General Head serving as the hearing officer. Over Blum's objection, the evidence from the first tribunal hearing was put into evidence. The second tribunal unanimously upheld Dixon's termination; and the Harlan Circuit Court upheld the termination on appeal.
Meanwhile, Blum filed a federal civil rights complaint for Dixon in the United States District Court for the Eastern District of Kentucky, London Division. In the amended complaint in that case, Blum alleged that Assistant Attorney General Head and others “framed” Dixon and “rigged” the second administrative tribunal hearing to accomplish Dixon's termination.
The federal court eventually dismissed Dixon's complaint because the statute of limitations had expired. After dismissing the action, the judge, acting on his own motion, sanctioned Blum for improper conduct during the course of the case. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the dismissal and the sanctions levied against Blum.
Blum's conduct in the course of these state administrative and judicial proceedings and federal judicial proceedings forms the basis for this disciplinary action.
The Inquiry Commission issued a five-count Charge against Blum for violating:
(1) SCR 3.130–3.4(c),2 for unrelenting personal attacks on the hearing officers, opposing counsel, and the U.S. District Court; by repeatedly pressing legal claims and filing pleadings that contained inappropriate language, claims and assertions; and by persisting in instructing opposing counsel and the U.S. District Court as to the proper procedures, despite being warned by the court that his actions were improper;
(2) SCR 3.130–3.4(f),3 by threatening to present disciplinary charges solely to obtainan advantage in his client's case, including threatening disciplinary charges against the hearing officer in the Dixon matter and threatening to present disciplinary charges against Defendant Lawson in the federal matter;
(3) SCR 3.130–3.5(c),4 by making allegations that were unsubstantiated or unrelated to the case and by multiplying the proceedings unreasonably and vexatiously, resulting in needless delay to the court and unnecessary expense to the defendants;
(4) SCR 3.130–3.1,5 by asserting issues in the matter with no factual basis and by pursuing the case based on unsubstantiated, frivolous, and baseless allegations;
(5) SCR 3.130–8.2(a),6 by alleging the administrative tribunal's hearing officer conspired against Dixon in an effort to frame his client and cause the tribunal to rule against his client, by accusing the hearing officer of incompetence, by asserting that the hearing officer was involved in a quasi-legal scheme to defraud Dixon, by asserting that the hearing officer “rigged” the hearing, by referring to the proceeding as a “sham,” and by impugning the character of the hearing officer.
Blum filed a response to the Charge, and a hearing followed before a trial commissioner. Before the hearing, the trial commissioner granted the KBA's motion to apply collateral estoppel, preventing Blum from “relitigating the matters litigated in the Dixon action in the U.S. District Court and Sixth Circuit Court of Appeals.” Blum argued before the trial commissioner and continues to argue to this Court that the use of collateral estoppel in this manner effectively prevented him from presenting a meaningful defense.
After hearing the evidence, the trial commissioner issued a 29–page report finding Blum guilty of violating the Kentucky Rules of Professional Conduct as charged in Counts I, II, III, and V, but not guilty of Count IV.
Blum appealed the decision to the Board of Governors, which unanimously adopted the trial commissioner's report. The Board of Governors also adopted the trial commissioner's recommended 181–day suspension from the practice of law.
Blum now appeals to this Court, alleging various due process violations, insufficient evidence to support the Charge, and a wholesale disapproval of the disciplinary process that brought him to this point. And consistent with the conduct that lead to this action, Blum has filed with this Court more than the customary number of motions, all purporting to instruct this Court and the KBA on the proper procedures.
From the outset, we dispose of Blum's contention that the trial commissioner's use of collateral estoppel was error. This Court has repeatedly barred attorneys from usurping the disciplinary process by relitigating the merits of a case. In Kentucky Bar Ass'n v. Harris,7 we noted that “[i]n disciplinary proceedings, a judgment of a court is considered conclusive proof that the alleged conduct occurred.” 8 And we see no reason to depart from this sound approach.
Blum appealed the order of the U.S. District Court imposing sanctions against him for improper conduct. He was unsuccessful before the federal appellate court, which affirmed the misconduct sanction and buttressed its opinion by quoting Blum's brief as an example of aberrant professional behavior. Naturally, Blum wants to replow that ground. But the disciplinary process is not a forum in which to resurrect the arguments lost in the federal case. Because we review alleged violations de novo, the prohibition against retrying the facts of his conduct in federal court does not preclude Blum from presenting a meaningful defense to the issue of whether the conduct that earned him condemnation in the federal courts constitutes a violation of the Kentucky Rules of Professional Conduct.
Blum also argues that the trial commissioner's findings of guilt should be overturned because the Charge issued by the Inquiry Commission was vague and lacking in evidentiary support. As a result, he argues that he could not precisely defend against these vague allegations.
But the Inquiry Commission is not required to state the factual basis of alleged violations with the same specificity as factfinders like the trial commissioner or Board of Governors. Rather, a showing of probable cause is all that is required.9 The findings by the trial commissioner and the Board of Governors are advisory only; and, as such, we conduct an independent review of the record and alleged violations.10 So we reject Blum's contention that the First Amended Charge is defective.
The Inquiry Commission charged that Blum violated SCR 3.130–3.4(c) by disregarding various warnings and instructions issued by the U.S. District Court. The trial commissioner found that the evidence showed Blum was guilty and the Board of Governors agreed. As the trial court found, Blum's conduct was highly inappropriate; but because Blum did not disobey an obligation under the rules of a tribunal, we find him not guilty.
At a court-ordered scheduling conference early-on in that case,...
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