Eric Charles Deters v. Kentucky Bar Association

TO BE PUBLISHED
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ERIC CHARLES DETERS
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Pursuant to Supreme Court Rule (SCR) 3.480(2), Eric C. Deters moves
this Court to impose a sixty-day suspension for his violations of the Rules of
Professional Conduct. The Kentucky Bar Association (KBA) has no objection to
this negotiated discipline. Finding a sixty-day suspension appropriate, we
grant Deters's motion. Deters whose last known bar roster address is 5247
Madison Pike, Independence, Kentucky 41051, was admitted to the practice of
law in the Commonwealth of Kentucky on October 10, 1986.
KBA File 22026
Deters was retained to represent Aric Shinkle regarding criminal charges
in Indiana, including a vehicular homicide matter. For this representation,
Deters accepted the sum of $5,000. Deters was not licensed to practice law in
Indiana and had previously been denied pro hac vice admission in a separate
Indiana case. As a result, the representation was initially handled by another
member of Deters's firm, James Moore, who is licensed to practice law in
Indiana, Ohio, and Kentucky.
When Moore was unavailable to assist with Shinkle's probation violation
hearing, Deters asked Kevin Moser, an attorney licensed in Kentucky and
Indiana, to represent Shinkle at that hearing. Moser contacted Shinkle and his
parents, received discovery, and appeared at multiple court proceedings.
Subsequently, Moser contacted Deters to inquire about compensation for his
representation of Shinkle. Deters informed Moser that he had only been paid
to represent Shinkle for the vehicular manslaughter charge and that Moser
would have to seek compensation directly from the Shinkles. Consequently,
Moser contacted the Shinkles and received the sum of $1,000.
During the pendency of their son's case, the Shinkles hired a new
attorney who requested an accounting of the retainer given to Deters. Deters
refused to provide an accounting, claiming that he was unable to account for
how the retainer was used. During his representation Deters decided to forgo a
written fee agreement with the Shinkles, failed to keep time records, and chose
to not place the advance fee in an escrow account. The Shinkles' new attorney
also contacted Moore to request confirmation that he had been paid for the
time he worked on the case. In fact, Moore, who had left Deters's firm in 2013,
had not been paid for his work on the case.
In response to the inquiry, Deters sent a text message to the Shinkles to
advise them that he would not be refunding any portion of his fee and that he
was prepared to sue the couple for slander. Further, Deters advised the
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Shinkles that there was no longer an attorney/ client relationship and that he
would take actions detrimental to their son if necessary to defend himself.
On March 23, 2015, the Inquiry Commission (Commission) issued a
four-count charge against Deters for violation of: (1) SCR 3.130(1.6) (a)
(Confidentiality of information) for threatening the Shinkles with the disclosure
of information that may have been detrimental to Aric Shinkle; (2) SCR
3.130(5.5) (Unauthorized practice of law; multijurisdictional practice of law) for
continuing to represent Aric Shinkle in an Indiana criminal case without an
Indiana attorney assisting in the matter, and after learning he would not be
admitted pro hac vice; (3) SCR 3.130(1.15) (Fees) for failing to maintain the
advance fee payment in a proper escrow account and by failing to provide a full
accounting of the funds to Aric Shinkle; and (4) SCR 3.130(8.4)(c) (Misconduct)
for continuing the representation of Aric Shinkle after Deters was left with no
Indiana associates and after he was denied pro hac vice admission in Indiana.
Deters admits to violating the Rules of Professional Conduct as set forth
in Counts I, II, and III, but denies the violations listed in Count IV. In light of a
review of the evidence and Deters's cooperation to resolve his ethical violations,
the Inquiry Commission Chair and Immediate Past President approved the
dismissal of Count IV.
KBA File 23552
In June 2010, Deters contracted with Eugene Trenkamp and Dean
Gregory to represent their limited liability companies in a law suit against Fifth
Third Bank. Trenkamp and Gregory paid Deters $10,000 as a retainer for his
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services. While Deters was suspended from the practice of law, the case was
handled by Tina Edmondson, an employee of Deters's law firm. While
Edmondson was handling the case she obtained an additional $5,000 payment
from Trenkamp and Gregory.
In January 2014, Trenkamp contacted Deters by electronic mail to
discuss the firm's failure to respond to his attempts at communication. In a
hostile email exchange, Deters claimed that his firm had provided diligent
representation well in excess of the fees received. Additionally, Deters stated
that the firm's representation of Gregory and Trenkamp was over. It is unclear
from the record what if any steps were taken by Deters to end the
representation.
In any event, in a letter dated March 3, 2015, Trenkamp made it clear
that he believed that the representation was ongoing. Trenkamp noted that he
had been unsuccessful in the preceding weeks in obtaining a response from
Edmonson regarding the status of the lawsuit. Trenkamp then informed
Deters that he had recently learned that Edmonson was no longer employed by
Deters's firm. Consequently, Trenkamp requested that Deters's firm end the
representation, refund the $15,000 that had been paid, and provide a copy of
the file. Subsequently, Trenkamp filed a bar complaint against Deters.
While no formal charges were filed by the Commission, Deters
acknowledges that there is probable cause to find that he violated the following
rules: (1) SCR 3.130(1.3) (Diligence); (2) SCR 3.130(1.4) (Communication); (3)
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SCR 3.130(1.16) (Declining or terminating representation); and (4) SCR 5.1
(Responsibilities of partners, managers and supervisory lawyers).
Proceedings Before this Court
The Inquiry Commission consolidated Deters's files pursuant to SCR
3.260(1). In response to the Commission's inquires, Deters now moves this
Court to enter an order suspending him for a period of 60 days. Additionally,
Deters has agreed to refund $1,000 to the Shinkles in KBA file 23552. The
KBA has no objection to the proposed discipline, which was negotiated
pursuant to SCR 3.480(2). Upon review of the facts in this case and relevant
case law, we find the proposed discipline is appropriate.
While Deters's prior disciplinary history does support increased
sanctions, his cooperation in the resolution of these matters is considered as a
mitigating factor. Further, the Court has previously issued similar discipline in
comparable cases. See, e.g., Kentucky Bar Ass'n v. Justice, 198 S.W.3d 583
(Ky. 2006) (attorney with four previous private reprimands, was suspended for
thirty days for failing to communicate with client, prosecute client's case, keep
funds separate, and return unearned fee). Additionally, we note that Deters is
currently suspended from the practice of law and only able to seek
reinstatement to practice pursuant to SCR 3.510.
Accordingly, it is hereby ORDERED:
1. Eric C. Deters is suspended from the practice of law in the
Commonwealth of Kentucky for sixty days.
2. Deters must return $1,000 to Mr. and Mrs. Shinkle (KBA File 22026).
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3. Pursuant to SCR 3.450, Deters is directed to pay all costs associated
with these disciplinary proceedings, in the amount of $156.09, for which
execution may issue from this Court upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED: March 17, 2016.