Inquiry Commission v. Benjamin Gerald Dusing

TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0512-KB
INQUIRY COMMISSION MOVANT
V. IN SUPREME COURT
BENJAMIN GERALD DUSING RESPONDENT
OPINION AND ORDER
Benjamin Gerald Dusing1 has been charged in KBA File 21-DIS-0187
and 21-DIS-0192 for violating provisions of SCR 3.130, the Kentucky Rules of
Professional Conduct.2 The Inquiry Commission, by and through the Office of
Bar Counsel, filed a Petition for Temporary Suspension of Dusing on November
12, 2021, as supplemented on December 29, 2021. Dusing, by counsel, filed a
Verified Response to the Petition on December 7, 2021, and also a Response to
KBA Member No. 89178, with bar roster address of 809 Wright Summit Pkwy,
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Suite 120, Fort Wright, KY 41011.
2 KBA File No. 21-DIS-0187 relates to a bar complaint filed by Michael Hild,
whom Dusing represented in a federal criminal trial in the Southern District of New
York. Hild’s complaint was attached to the Inquiry Commission’s Petition as Inquiry
Commission Exhibit 4. The record presented to this point does not include KBA File
No. 21-DIS-0192, but that file presumably is based on Dusing’s videos posted to
Facebook and threats to judicial staff and opposing counsel.
the Supplement on December 29, 2021.
The Commission alleges that on November 2, 2021, Dusing posted a
video to Facebook that contained threats to Attorney Stephanie Dietz and a
Kenton Family Court staff attorney. That day, Judge Christopher J. Mehling,
Kenton Family Court, as well as Dietz and the staff attorney, watched the
video. Two days later, Judge Mehling issued an Order of Recusal in the two
cases then pending in his Family Court division involving Dusing. Judge
Mehling’s Order provided:
This court conducted a hearing on November 2, 2021, at
motion docket via Zoom on matters in both cases. At that time
this court was shown a video that Ben Dusing posted on social
media that morning. In that video Dusing claimed that this court
was corrupt and directly threatened this court's staff attorney and
Bakker's attorney [Dietz], each by name. He indicated he “would
blow them up.” The video was quite disturbing. This court’s staff
attorney was with me on the bench at the time and was physically
upset during and after the playing of this video. She became
fearful for her life. This court indicated at the time that the
content of the video was threatening to the court, to the court’s
staff attorney and to Bakker’s attorney. It was inappropriate and
improper for anyone, let alone a member of the Kentucky Bar, to
post such a video about a court proceeding in which he is involved.
It clearly was meant to intimidate this court and this court’s staff
and the attorneys involved in the cases with Dusing. The video
was profanity laced. This court indicated that the video would be
provided to the Commonwealth Attorney.
This court, sua sponte, enters an order of recusal in each
case. Consistent with the Supreme Court’s recent decision in
Abbott, Inc. v. Guirguis, et al., 626 S.W.3d 475 (Ky. 2018), this
court wishes to place on the record the reasons for this recusal.
This court has labored for months with a deluge of motions from
Dusing in both cases after this court held trials and ruled in each
case. A multitude of appeals are pending. A petition for a Writ is
pending in the Court of Appeals and this is the second petition for
a Writ filed by Dusing. The first was denied. One request for
recusal was rejected by the Chief Justice. At last count, ten
motions for recusal in each case have been denied.
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This court has attempted to do its duty in each case, be fair
to all, hear the evidence and make rulings while following the law.
This court still believes that this court can be fair and impartial[;]
that is this court's duty. However, by making a direct threat to
this court’s staff attorney this court believes that there will now be
an appearance of impartiality regardless of the facts. KRS
26A.015(2)(e) requires recusal if the judge “has knowledge of any
other circumstances in which his impartiality might reasonably be
questioned.” For this reason and this reason alone, this court now
recuses in both cases.
This court must observe that if any litigant can behave in
this manner without any consequences, our justice system surely
is in grave peril. This behavior is nothing more than bullying of a
court by a litigant. This is magnified by the fact that the litigant is
a lawyer authorized to practice law in this Commonwealth. If this
behavior can stand with no consequence, then we might as well
dismiss all of the ethics rules lawyers are to follow. Talk of civility
by the bar[,] there has been none here. This court is quite
reluctant to enter this order; on first blush the bully has won.
However, this court believes that it is my duty to now recuse
because of the appearance issue, even though it is self-created by
Dusing. . . .
The Inquiry Commission’s Petition emphasizes, as mentioned in Judge
Mehling’s Order, Dusing’s lengthy course of abusive and menacing behavior in
two family court cases that were pending before Judge Mehling: Dusing v.
Tapke, No. 15-CI-1945 (Kenton Fam. Ct. filed Nov. 20, 2015), and Bakker v.
Dusing, No. 19-CI-560 (Kenton Fam. Ct. filed Apr. 8, 2019). Significantly, on
April 5, 2021, Judge Mehling had entered extensive Findings of Fact,
Conclusions of Law, Orders and Judgment of Custody in Bakker. Judge
Mehling detailed Dusing’s extensive history of abusive conduct and physical
violence, including multiple death threats to Bakker, with whom he had
fathered a child. Judge Mehling described Dr. David Feinberg’s assessment of
Dusing as “demonstrat[ing] a person who is guarded, suspicious, hostile,
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insecure and mistrusting[.]”
In its Supplement, the Commission filed the affidavit of Attorney Dietz in
which she detailed her professional credentials, involvement in the Bakker
case, and her viewing and perception of Dusing’s November 2 video. Dietz
described Dusing’s behavior similarly to Judge Mehling’s description:
psychological, physical and legal abuse. Dietz additionally detailed her “utter
fear” of Dusing and her consequent actions to protect herself.
The Commission’s Petition also included Hild’s notarized bar complaint
against Dusing.3 Hild alleges misconduct by Dusing in representing Hild in a
federal criminal trial in New York,4 including solicitation of representation,
actual conflict of interest, misappropriation of funds, dishonesty and
incompetence. Hild’s complaint includes the following allegation:
Dusing’s lack of preparation, poor performance at my trial,
visible consumption of prescription drugs with runs to the
pharmacy by his staff, are cause for grave concern now that I
understand those prescription bottles to have contained
amphetamines. . . . In fact, I remember Mr. Dusing stating during
the trial that he was “back in business” after clutching a large
prescription bottle that his paralegal just retrieved from the
pharmacy for him. This was after a terrible performance at my
trial when Mr. Dusing was unprepared, disheveled, seemed to have
trouble collecting his thoughts, and failed to find the right words to
piece together full sentences when questioning witnesses.
In response, Dusing, by counsel, admits that he posted the November 2
video, but states that it cannot be considered to convey a physical threat, but
3Both Hild’s bar complaint and Dietz’s affidavit are supporting affidavits within
the meaning of SCR 3.165(1).
4 United States v. Hild, No. 19-CR-602-RA (S.D.N.Y.).
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rather expressed his aspirational goal to clean up the “preferential justice” and
corruption in the Kenton Family Court and his vow to use all legal means at
his disposal to do so. His view of this and his 40 to 50 other videos is “to
highlight examples of what [Dusing] views as corruption so there is public
awareness and understanding . . . so that steps might be taken to correct the
problem.” Dusing admits he used the phrase “give me a reason to blow your
asses up” but argues that it was not intended literally, but figuratively “about
taking formal legal and disciplinary action against them[,]” as demonstrated by
the immediately following statements in the video. Dusing, thus, summarizes
that “[w]hile his language was unprofessional, it did not evidence a substantial
threat of harm to Ms. Dietz or Ms. Keyes[, Judge Mehling’s staff attorney].”
After Dusing learned that Dietz felt threatened by the video, he deleted it from
his Facebook page.
Dusing denies addiction to alcohol, illegal or prescription drugs, and
states that he has been clean and sober for 19½ years and has participated
with KYLAP since becoming a member of the bar, initially as a monitor for
impaired lawyers and more recently as a member of the KYLAP Commission.
Dusing acknowledges a diagnosis of attention-deficit/hyperactivity disorder
(ADHD) for which he takes Adderall, as prescribed by Dr. Andrew Klafter.
Dusing denies the allegations made by Hild. Dusing states that the drug
referred to by Hild was the Adderall prescription.
Dusing denies mental disability, and states that he has been seeing his
mental-health service provider, Dr. Klafter, for almost a decade on a weekly
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basis. He describes the allegations against his mental health as a “routine ‘go-
to’” by his ex-wife and ex-fiancée. Dusing cites evaluations by Kerrie
Brittingham and Dr. Stuart Bassman as further evidence of his mental health;
he claims Dr. Feinberg’s opinion should carry little weight, based on
insufficient observation and bias.
Finally, Dusing concludes that the allegations of Dietz and Hild are the
result of “an alignment of interests and serious common incentive to work
together to attack Mr. Dusing and assail his character and credibility.”
SCR 3.165 sets forth the parameters for a motion for temporary
suspension. The rule provides:
(1) On petition of the Inquiry Commission, authorized by its
Chair, or the Chair's lawyer member designee, and supported by
an affidavit, an attorney may be temporarily suspended from the
practice of law by order of the Court provided:
. . .
(b) It appears that probable cause exists to believe that an
attorney's conduct poses a substantial threat of harm to his clients
or to the public;
...
(d) It appears that probable cause exists to believe that an
attorney is mentally disabled or is addicted to intoxicants or drugs
and probable cause exists to believe he/she does not have the
physical or mental fitness to continue to practice law. If the attorney
denies that he/she is mentally disabled or denies that he/she is
addicted to intoxicants or drugs, the Court may order the attorney
to submit to a physical or mental examination by a physician or
other health care professional appointed by the Court. The
examining health care professional shall file with the Clerk of the
Court a detailed written report setting out the findings of the health
care professional, including results of all tests made, diagnosis and
conclusions, together with like reports of all earlier examinations by
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any health care professional of the same condition. The Clerk of the
Court shall furnish a copy of the examining health care
professional's entire report to the attorney and to Bar Counsel. The
Court may order the attorney to produce to the Court and Bar
Counsel any relevant medical, psychiatric, psychological or other
health care or treatment records, including alcohol or drug abuse
patient records, evidencing prior or ongoing treatment for mental
disability or addiction to drugs or to execute appropriate releases
which would comply with applicable federal and state law in order
to permit the treating health care professional to release those
records to the Court and Bar Counsel. Any such order and the
resulting records regarding the treatment shall be confidential and
sealed in the record.
The Commission has established probable cause to believe that Dusing’s
conduct poses a substantial threat of harm to his clients or to the public.
Dusing admits making and posting the threatening video with respect to Dietz
and Keyes. While he attempts to rationalize the video, Dusing does not deny
threats and abuse to Bakker as found by Judge Mehling. The issue before us
is not whether Dusing is, in fact, a threat to his clients or the public, or
whether, in fact, he is mentally disabled or is addicted to intoxicants or drugs
and has the mental fitness to continue to practice law. The issue is whether
the Commission has established “that probable cause exists to believe” those
facts exist. From the record before us, the Commission has presented enough
information to establish probable cause for us to believe either that Dusing
poses a substantial threat of harm to his clients or the public or that he is
mentally disabled and lacks the mental fitness to continue to practice law.
ACCORDINGLY, IT IS HEREBY ORDERED as follows:
1. Benjamin Gerald Dusing is temporarily suspended from the practice of
law in the Commonwealth of Kentucky, effective from the date of entry of this
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order, such temporary suspension from the practice of law to continue until
further orders of this Court.
2. Under SCR 3.165(1)(d), within 90 days from the date of entry of this
order, Dusing must submit to a full psychological evaluation, at his own
expense, to be performed by his choice of one of the following providers:
Dr. Michael H. Cecil
Louisville Neuropsychology
8401 Shelbyville Road #216, Louisville, KY 40222
(502) 254-1001
Paul Anthony Ebben, Psy.D.
151 North Eagle Creek Drive, Suite 102
Lexington, KY 40509
(859) 264-0267
Thomas Sullivan, Ph.D.
2810 Mack Road
Fairfield, OH 45014
(513) 346-3811
3. Dusing’s chosen health-care professional shall submit to the Clerk of
the Supreme Court of Kentucky at the address below a detailed written report
setting out the findings of the health care professional, including results of all
tests made, diagnosis and conclusions, bearing upon Dusing’s mental fitness
to continue in the practice of law:
Kelly Stephens
Clerk of the Supreme Court of Kentucky
State Capitol, Room 235
700 Capital Ave.
Frankfort, KY 40601-3415
4. Dusing must sign all appropriate releases to comply with all applicable
federal and state laws to permit his chosen health-care professional to release
all records generated in connection with any psychological evaluation of
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Dusing.
5. Disciplinary proceedings against Dusing may be initiated by the
Inquiry Commission under SCR 3.160, unless already begun or unless Dusing
resigns under terms of disbarment.
6. Under SCR 3.165(5), Dusing must, within 20 days of the date of the
entry of this Opinion and Order, notify in writing all clients of his inability to
provide further legal services and furnish the Director of the Kentucky Bar
Association with copies of all such letters.
7. Under SCR 3.165(6), Dusing must immediately, to the extent
reasonably possible, cancel and cease any advertising activities in which he is
engaged and remove his name from any firm with which he is associated.
All sitting. All concur.
ENTERED: February 24, 2022.
________________________________________
CHIEF JUSTICE
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