Pro Se Representation Draws Sanction; Facebook Video Violated Ethics Rules

The Kentucky Supreme Court suspended an attorney for three years without credit for time served while suspended on an interim basis

The Board of Governors (the “Board”) of the Kentucky Bar Association (“KBA”) has recommended to this Court that Benjamin Gerald Dusing (“Dusing”) be suspended from the practice of law for three (3) years, effective on the date of this Order and without credit for time served during his temporary suspension. Upon the Court’s independent review of the briefs, the record, and the applicable law, we agree that Dusing’s violations are troubling and egregious. We therefore conclude that Dusing’s conduct merits the sanction recommended by the Board.

The misconduct involved his own acrimonious divorce, where he and his counsel had filed a number of recusal motions

On November 2, 2021, Dusing posted a video to Facebook that he acknowledges was “crass,” “offensive,” “imprudent,” and “undoubtedly a mistake of judgment.” Before delving further into the facts of this incident, however, some brief background on the pre-ruling practices of the Kenton Family Court is necessary. Like at least some other family courts in the Commonwealth, the Kenton Family Court utilizes a pre-ruling docket to address motions filed with the court. Kenton Fam. Ct. Local Rule (“LR”) 203. Under this system, the family court judge will consider motions filed for motion hour and issue initial “pre-rulings” on those motions…

Dusing contends the video he posted to Facebook was prompted by improper communications between Bakker’s [a women who was the mother of his child] counsel, Stephanie Dietz, and Judge Mehling’s staff attorney, Alice Keys. We disagree the communications were improper.

The post

The following day, Dusing posted an incredibly disturbing and threatening video on Facebook setting forth the following diatribe, which we set forth here in full

Editor’s note: I have edited the lengthy post

Alright. Alice Keys and Stephanie Dietz, we need to have a little talk, so I appreciate you taking the time. I need to deliver a message to you on behalf of the families, kids, and parents of Kenton County. Now I do need to warn you. The following message that I am going to deliver is going to be—as they say– BGD [his initials] style.  This is going to be some fairly direct messaging…

The fucking bullshit that you’re engaged in, and I’ve avoided using curse words. I’ve spoken very softly and in general terms without naming names for the most part. Inviting you time and time and time and time and time again to knock it the fuck off and stop your corrupt fucking bullshit. The problem with that approach as it turns out is that it hasn’t worked, and in my experience that tends to be the case, and the conversation that we’re gonna have now and the message that’s going to be sent is going to be really fucking direct…

You want to give me the best fucking Christmas gift anybody’s ever given me? Give me a fucking reason to blow your asses up. It’d be the best Christmas gift I’ve ever gotten…

I swear to fucking God if I see anything like this again every resource in my arsenal, every ounce of energy that I have and every person that works at this law firm will be committed full bore to bringing the fucking wrath of motherfucking God down on both of you guys. You understand? It’s fucking bullshit, we’re better than this. It’s a court of fucking law and this shit goes on all the fucking time and we know it, everybody knows it. And this shit stops right fucking now. Right now.

As a result

Judge Mehling became aware of Dusing’s video and, although he had previously denied at least seven motions to recuse by Dusing, sua sponte recused from both Family Court Proceedings given the appearance of impropriety that would have arisen from his presiding over a case involving a litigant who made physical threats against his staff attorney.

Respondent’s contention that no threat was intended did not pursuade the court

Dusing asserts that his purpose in posting the video was not to make physical threats, but rather to advocate for reform of the court system. The video, including its foul and threatening language, speaks for itself. In a separate incident, Dusing wrote to a guardian ad litem (GAL) in the Family Court Proceedings that “[t]his is the last time I use words to express my deepest objection to your conduct in this litigation both personally and professionally.” This, too, he contends was not intended as physical threat.

In yet another notable incident, Dusing hired Dr. Ed Connor as a consulting psychologist to advise him in the Bakker litigation. After Dr. Connor issued a custodial evaluation, Dusing’s attorney, Joseph Otis, went to Dr. Connor’s office and offered him some form of payment. Dusing contends the payment was not a bribe, but rather was for additional services and that Dr. Connor was confused about his role in the litigation. In a written order, however, the Family Court found that Otis at Dusing’s direction had offered Dr. Connor $5,000 to change his custodial evaluation and to designate it as preliminary.

Facebook video as ethical violation

In sum, we conclude that Dusing did not post the video to remedy any actual or even perceived corruption in the courts. Rather, Dusing seized upon the unremarkable communications between Dietz and staff attorney Keyes as an opportunity to attack those participants in the legal system and obtain Judge Mehling’s recusal. In so doing, Dusing unquestionably intended to—and did—disrupt the Family Court proceedings by improperly obtaining the recusal of Judge Mehling, and thus also violated SCR 3.130(3.5)(d).

Pro se not a “free pass”

the fact that a lawyer is representing himself does not give him a free pass. Regardless of whether no previous Kentucky case has so sanctioned a lawyer, there is one now and the Bar should accordingly be disabused of any notion otherwise.

Sanction

Dusing was found guilty of ten charges; his actions were incurred in two cases; those actions were not merely in zealous advocacy of a client but for selfish purposes of his own. And, significantly, notwithstanding our giving Dusing some of the benefit of the doubt on the Facebook video, in that moment, that video had the effect of terrorizing two lawyers and was sufficiently concerning to Judge Mehling that he recused. That conduct is simply unacceptable and merits a more severe punishment.

We affirm the sanction recommended by the Board of Governors.

BISIG, J., CONCURRING IN PART & DISSENTING IN PART:

I agree with the majority Opinion’s conclusion that Dusing is guilty of violating the ethical rules cited above. However, I strongly disagree that the three-year suspension recommended by the Board of Governors is a sanction sufficient for the egregious—and unprecedented—nature of the conduct before us.

Put simply, Dusing manifested unmitigated contempt for the judicial system and its important work of providing justice to the citizens of the Commonwealth—an endeavor he is ethically bound to honor and serve as an officer of the court. He nakedly defied our ethical rules in the pursuit of seemingly manipulating and distorting the facts and defrauding the court in order to achieve his desired goal in litigation. And perhaps most significantly, he broadcast blatant public threats of physical violence against our courts and staff.

In my estimation, a three-year suspension is overwhelmingly inadequate to address the profoundly serious and troubling nature of Dusing’s conduct. This Court is duty-bound to ensure that the citizens of this Commonwealth are served by competent attorneys of high ethical standards. This Court is also duty-bound to protect the judges and other judicial staff under its aegis from threats of violence and attack. Those duties may only be met by the issuance of a significant sanction against the conduct we consider today. Woefully, because the Court’s sanction falls far short of the mark, I respectfully dissent.

Alleged corruption no excuse

it is difficult to imagine language less appropriate to address the simple passing of a motion to motion hour for consideration by the judge—or indeed to address even serious judicial impropriety—than “[g]ive me a fucking reason to blow your asses up. It’d be the best Christmas gift I’ve ever gotten.” Or “[y]ou can’t go cry to your mommy and say Ben’s a meany pants, play the victim, talk about how I motherfucked you up and down, and reamed your ass out, which I’m about to.” In short, Dusing’s assertion that the video was provoked by judicial impropriety is entirely preposterous.

Dissent on sanction

After careful consideration, I conclude that only a ten-year suspension would be sufficient to address Dusing’s severe misconduct…

Dusing’s motives appeared to be wholly selfish, given that his conduct was simply part of an unrelenting and merciless campaign to gain every advantage for himself that he could in the Family Court Proceedings. An additional aggravating factor is Dusing’s almost-twenty years in the practice of law at the time of his misconduct, including time spent clerking for judges and as a prosecutor. Finally, I also note that Dusing’s conduct in attempting to bribe a witness and in physically threatening participants in the legal process were not only ethical violations but undoubtedly unlawful and possibly also criminal.

Conley, J., joins. (Mike Frisch)