Benjamin Gerald Dusing v. Kentucky Bar Association
This text of Benjamin Gerald Dusing v. Kentucky Bar Association (Benjamin Gerald Dusing v. Kentucky Bar Association) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0483-KB
IN RE: BENJAMIN GERALD DUSING
IN SUPREME COURT
OPINION AND ORDER
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.
I. FACTUAL & PROCEDURAL BACKGROUND
Benjamin Gerald Dusing was licensed to practice law in the
Commonwealth of Kentucky on May 1, 2002. His KBA member number is
89178 and his bar roster address is 809 Wright Summit Parkway, Suite 120,
Fort Wright, Kentucky 41011. Dusing has no prior disciplinary matters before
this Court. While commendable, although not particularly relevant, Dusing
points out to us that he has engaged in some humanitarian work with the
citizens of the Ukraine. In 2015, Dusing opened proceedings in Kenton Family Court regarding
his divorce from his wife, Julie Tapke, and custody and visitation of their three
children (the “Tapke litigation”). In 2019, Dusing also became party to another
proceeding in Kenton Family Court, this time regarding the paternity and
custody of a daughter born from a relationship Dusing had with Jill Bakker
(the “Bakker litigation”, and collectively with the Tapke litigation, the “Family
Court Proceedings”). Dusing was both represented by counsel and allowed to
practice pro se in the Family Court Proceedings. 1 Now-retired Family Court
Judge Christopher Mehling presided over both cases.
An independent review of the Family Court Proceedings below results in
the conclusion that they were decidedly acrimonious. During the litigation,
Dusing—both pro se and by counsel—filed at least seven motions for Judge
Mehling’s recusal, as well as numerous interlocutory appeals before the Court
of Appeals. Dusing also moved to continue trial several times and moved for
disqualification of opposing counsel three days before one scheduled trial date.
He threatened disciplinary complaints against both Judge Mehling and
opposing counsel, and approached law enforcement to discuss what he
contends was criminally corrupt conduct in the proceedings. Dusing asserts
that as a result of this and other experiences in Family Court, he and his
1 This accommodation, that Dusing was granted the ability to proceed pro se
when he was also represented by counsel, is unusual in that Kentucky law has long held a party represented by counsel in civil litigation may not also act pro se. Talbot v. Talbot’s Reps., 25 Ky. 3, 4 (1829) (enslaved person at issue) (“A party has the right to appear ‘in propria persona’ or by counsel. This right is alternative. A party has no right to appear both by himself and counsel. It would be irregular and very inconvenient to permit him, ‘ex gratia,’ to do so.”); Abert v. Berry, 8 Ky. Op. 343 (1875). 2 attorney, Katy Lawrence, formed Families Advocating for Reform of the Courts
(“FARC”), a group advocating for reform of the court system. Generally, this
Court respects and encourages the public’s right to advocate for betterment of
the justice system.
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. LR 203.03. Pre-rulings
may include granting or denying a motion, directing the parties to obtain a
hearing date from the court for the motion, or designating the motion as “to be
called” meaning the judge will hear it at the next regularly scheduled motion
hour. Id.; LR 203.04. If a party objects to the judge’s pre-ruling on a motion,
the motion is placed on the motion docket and will be heard by the judge at the
next motion hour. LR 203.05.
Dusing contends the video he posted to Facebook was prompted by
improper communications between Bakker’s counsel, Stephanie Dietz, and
Judge Mehling’s staff attorney, Alice Keys. We disagree the communications
were improper. The communications that prompted the video began on
3 October 29, 2021, when Dietz sent an email to Keys, with Dusing and his
counsel Lawrence copied, stating that two motions she had filed—one
regarding a name change and one regarding Ring videos—were not addressed
in the Family Court’s pre-rulings. Keys responded that the motions would be
added to the pre-rulings as “to be called,” and that Judge Mehling would
consider the motions at the regularly scheduled motion hour. Lawrence then
responded to note her objection to the motions, further noted she had filed
motions on the same subject matter that had been passed to a December 20,
2021, hearing date, and asserted Dietz’s motions should likewise be passed to
that hearing date.
On November 1, 2021, Keys responded to Lawrence and Dietz and
advised that Judge Mehling had reviewed the two pending motions and pre-
ruled that Dietz’s name change motion would be denied and the Ring video
would be called at the motion docket. Keys also noted that because Lawrence
had objected, the Ring video motion would be called at the next motion docket
on November 15, 2021 in accordance with Local Rule 203.05.
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:
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 style.[ 2] This is going to be some fairly direct messaging.
2 “BGD” are Dusing’s initials.
4 Now I understand both of you are more into sort of the victim culture that’s the latest fad and I’ve tried to abide by those standards for a long time now and being very restrained in trying to talk to you about the things that y’all are doing and I have used all the fluffy fluff fluff words that I can come up with and have stood down time and time again and making it clear I had hoped to the two of you that we were on to you. We know exactly what you’re doing, and you know, it is not appropriate. And also, inviting you to simply stop doing it. 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.
Free access — add to your briefcase to read the full text and ask questions with AI
TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0483-KB
IN RE: BENJAMIN GERALD DUSING
IN SUPREME COURT
OPINION AND ORDER
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.
I. FACTUAL & PROCEDURAL BACKGROUND
Benjamin Gerald Dusing was licensed to practice law in the
Commonwealth of Kentucky on May 1, 2002. His KBA member number is
89178 and his bar roster address is 809 Wright Summit Parkway, Suite 120,
Fort Wright, Kentucky 41011. Dusing has no prior disciplinary matters before
this Court. While commendable, although not particularly relevant, Dusing
points out to us that he has engaged in some humanitarian work with the
citizens of the Ukraine. In 2015, Dusing opened proceedings in Kenton Family Court regarding
his divorce from his wife, Julie Tapke, and custody and visitation of their three
children (the “Tapke litigation”). In 2019, Dusing also became party to another
proceeding in Kenton Family Court, this time regarding the paternity and
custody of a daughter born from a relationship Dusing had with Jill Bakker
(the “Bakker litigation”, and collectively with the Tapke litigation, the “Family
Court Proceedings”). Dusing was both represented by counsel and allowed to
practice pro se in the Family Court Proceedings. 1 Now-retired Family Court
Judge Christopher Mehling presided over both cases.
An independent review of the Family Court Proceedings below results in
the conclusion that they were decidedly acrimonious. During the litigation,
Dusing—both pro se and by counsel—filed at least seven motions for Judge
Mehling’s recusal, as well as numerous interlocutory appeals before the Court
of Appeals. Dusing also moved to continue trial several times and moved for
disqualification of opposing counsel three days before one scheduled trial date.
He threatened disciplinary complaints against both Judge Mehling and
opposing counsel, and approached law enforcement to discuss what he
contends was criminally corrupt conduct in the proceedings. Dusing asserts
that as a result of this and other experiences in Family Court, he and his
1 This accommodation, that Dusing was granted the ability to proceed pro se
when he was also represented by counsel, is unusual in that Kentucky law has long held a party represented by counsel in civil litigation may not also act pro se. Talbot v. Talbot’s Reps., 25 Ky. 3, 4 (1829) (enslaved person at issue) (“A party has the right to appear ‘in propria persona’ or by counsel. This right is alternative. A party has no right to appear both by himself and counsel. It would be irregular and very inconvenient to permit him, ‘ex gratia,’ to do so.”); Abert v. Berry, 8 Ky. Op. 343 (1875). 2 attorney, Katy Lawrence, formed Families Advocating for Reform of the Courts
(“FARC”), a group advocating for reform of the court system. Generally, this
Court respects and encourages the public’s right to advocate for betterment of
the justice system.
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. LR 203.03. Pre-rulings
may include granting or denying a motion, directing the parties to obtain a
hearing date from the court for the motion, or designating the motion as “to be
called” meaning the judge will hear it at the next regularly scheduled motion
hour. Id.; LR 203.04. If a party objects to the judge’s pre-ruling on a motion,
the motion is placed on the motion docket and will be heard by the judge at the
next motion hour. LR 203.05.
Dusing contends the video he posted to Facebook was prompted by
improper communications between Bakker’s counsel, Stephanie Dietz, and
Judge Mehling’s staff attorney, Alice Keys. We disagree the communications
were improper. The communications that prompted the video began on
3 October 29, 2021, when Dietz sent an email to Keys, with Dusing and his
counsel Lawrence copied, stating that two motions she had filed—one
regarding a name change and one regarding Ring videos—were not addressed
in the Family Court’s pre-rulings. Keys responded that the motions would be
added to the pre-rulings as “to be called,” and that Judge Mehling would
consider the motions at the regularly scheduled motion hour. Lawrence then
responded to note her objection to the motions, further noted she had filed
motions on the same subject matter that had been passed to a December 20,
2021, hearing date, and asserted Dietz’s motions should likewise be passed to
that hearing date.
On November 1, 2021, Keys responded to Lawrence and Dietz and
advised that Judge Mehling had reviewed the two pending motions and pre-
ruled that Dietz’s name change motion would be denied and the Ring video
would be called at the motion docket. Keys also noted that because Lawrence
had objected, the Ring video motion would be called at the next motion docket
on November 15, 2021 in accordance with Local Rule 203.05.
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:
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 style.[ 2] This is going to be some fairly direct messaging.
2 “BGD” are Dusing’s initials.
4 Now I understand both of you are more into sort of the victim culture that’s the latest fad and I’ve tried to abide by those standards for a long time now and being very restrained in trying to talk to you about the things that y’all are doing and I have used all the fluffy fluff fluff words that I can come up with and have stood down time and time again and making it clear I had hoped to the two of you that we were on to you. We know exactly what you’re doing, and you know, it is not appropriate. And also, inviting you to simply stop doing it. 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. Now, you’ll have a choice at the end and it will be a fundamental choice. You 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. You can do that, make it all about you, and be a victim of Ben’s little direct messaging here. That’s one of your choices that you’ll have. The other choice is that you can learn a fucking lesson. You can get honest and get humble and recognize that what you’re fucking doing is big-time fucking wrong, and there are serious fucking consequences to it, and you can change, get better and grow, and that’s your choice. But I want to make sure you have that choice. And I want to be very fucking clear today about the message I’m sending on behalf of all the people, all the lawyers, all the litigants, all the families, all the kids of Kenton County. And that message is this: Knock it the fuck off. I want to be very clear, so help me God if I see any shit like this again, if I see it one more fucking time, that the restraint that I feel I have shown to both of you, that the ample opportunities I’ve given both of you to fucking just knock it the fuck off and stop doing petty corruption like this, and it’s not that petty. I don’t know who the fuck you think you are or what the fuck you think you’re doing and how the fuck long you think you can get away with it. It’s a pretty crafty little scheme, but at the end of the fucking day, we don’t do this shit. This is a court of fucking law, and so long as I fucking see this, I just ain’t gonna have it. I just ain’t gonna have it, you understand me? My concern is that you don’t understand me, and let me say this again. I ain’t gonna fucking have it. I feel like I have gone to great lengths to make it clear in a generalized and indirect way that I am aware of what you’re doing. And I have invited you to just knock it 5 the fuck off, just stop it. And yet, it is quite clear that the message has not gotten through. I have also become acutely aware that I speak not only on behalf of myself, but on behalf of a lot of fucking people, and I deign today, I am comfortable speaking on behalf of the public directly to you motherfuckers and saying this: Knock it the fuck off. If you’ve got a problem with my language, or what I’m saying or how I’m doing it, you fucking stand up like big girls and speak out. Please sue my ass. I would be delighted to make your coffee and have you sit in my conference hour, conference room, and answer all the questions that the public has for you, on behalf of all the people that have suffered this bullshit. This shit doesn’t just happen in my case, I know that and you know that. Not everybody has the ability to stand up to you, but I do, and I am. And I want you to understand this. 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’ve been accused of a lot of shit, ok? I’ve heard a lot of stuff, all the normal shit. You know what I’ve never heard? I’ve never heard somebody’s asked me for help and I haven’t helped them. I’ve never heard that I made a commitment and I didn’t follow through on it. And I want to make sure that you understand the commitment that I make to you and the people of Kenton County today. And that commitment is this, 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. And if anybody out there, any other lawyers or litigants, experiences the same thing, which they almost certainly will not, it’s taken a long time to get to the point where, because of our objections, that the matter is brought to the attention of the judge, and kudos to the judge for doing the right thing and getting it right, and I’ve always believed that if things operated the way that should and people were aware of these things, he’d get it right, and he did. He followed the law. But that fucking shit is bullshit. Alice Keys, you’re not the fucking judge. Stephanie Dietz, it is fucking wrong to knowingly avail yourself of that kind of corruption. I don’t want to hear that kind of shit, that chickenshit bullshit, I didn’t do anything wrong, I just emailed the fucking court. You emailed the fucking court knowing what you were fucking doing and you were going to get the fucking outcome that you fucking wanted. You made the decision to take advantage of a corrupt actor and that’s just as corrupt and I don’t want to 6 hear it. Listen, bring everything you fucking got if you want to on me, and go fucking nuts that I put this on fucking Facebook. I only care about one fucking thing, I’ve caught the two of you with your hand in the fucking cookie jar ten times, and I’ve stood down a lot. No more. On behalf of the people of Kenton County, knock if the fuck off. I’m glad that we had this talk.
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. In his recusal
order, Judge Mehling stated:
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.”[3] For this reason and this reason alone, this court now recuses in both cases.
Judge Mehling further noted,
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. . . . 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.
3 See also Kentucky Supreme Court Rule (SCR) 4.300, Rule 2.11 (stating “[a]
judge shall disqualify himself or herself in any proceeding in which the judge's impartiality* might reasonably be questioned[]”).
7 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.
The KBA brought three sets of charges against Dusing, all arising from
his conduct in the Family Court Proceedings. The first, Case No. 21-DIS-0046,
sets forth five charges relating to Dusing’s conduct in the Bakker litigation.
Count I alleges Dusing violated SCR 4 3.130(3.5)(d) by filing repeated and
frivolous motions and appeals, all with intention to disrupt the tribunal.
4 Rules of the Supreme Court.
8 Counts II and III allege Dusing violated SCR 3.130(3.4)(f) when he threatened
or presented criminal or disciplinary charges against Judge Mehling and
opposing counsel Dietz solely to obtain an advantage in the proceedings.
Count IV alleges Dusing violated SCR 3.130(3.4)(b) and SCR 3.130(8.4)(a) when
he assisted or induced his attorney Otis to offer $5,000 to consulting expert Dr.
Connor to change his custodial evaluation. Count V alleges Dusing violated
SCR 3.130(8.2)(a) when he made numerous knowingly or recklessly false
statements in pleadings concerning the qualifications or integrity of Judge
Mehling.
The second case, Case No. 21-DIS-0142, sets forth three charges
relating to Dusing’s conduct in the Tapke litigation. Count I alleges Dusing
violated SCR 3.130(3.1) by filing multiple motions and pleadings that lacked
basis in law or fact. Count II alleges Dusing violated SCR 3.130(3.5)(d) by filing
numerous frivolous motions and appeals and by repeatedly emailing the GAL,
all for the purpose of disrupting a tribunal. Count III alleges Dusing violated
SCR 3.130(4.4)(a) because he also engaged in this same conduct for no
substantial purpose other than to delay, embarrass, or burden a third person.
Finally, in the third case, Case No. 21-DIS-0192, the KBA alleges that
Dusing’s posting of the November 2, 2021, Facebook video violated SCR
3.130(3.5)(d).
On February 24, 2022, we found probable cause to believe that Dusing’s
conduct “poses a substantial threat of harm to his clients or to the public.”
9 Inquiry Comm’n v. Dusing, 647 S.W.3d 260, 264 (Ky. 2022). 5 We therefore
entered an Order temporarily suspending Dusing from the practice of law until
further Order of the Court. Id. at 264-65. We also ordered that Dusing submit
to a full psychological evaluation within ninety days. Id. at 265.
A Trial Commissioner was appointed to hold a hearing regarding the
charges against Dusing. Before the hearing, the KBA moved the Trial
Commissioner to give the Family Court order regarding Otis’s offer of money to
Dr. Connor preclusive effect under the doctrine of collateral estoppel. The Trial
Commissioner granted the KBA’s motion. However, the Trial Commissioner
also allowed Dusing to offer testimony as to whether he had in fact
inappropriately offered Dr. Connor money to change his report.
On December 12 through 14, 2022, the Trial Commissioner held a
three-day hearing regarding the charges. The KBA did not present witnesses,
but rather presented documentary evidence consisting largely of pleadings and
records from the Trial Court Proceedings. Dusing also presented documentary
evidence, as well as his own testimony which spanned a three-day period. He
did not present any other witnesses.
On April 24, 2023, the Trial Commissioner issued his Report in which he
found Dusing guilty of all the charges against him. The Trial Commissioner
5 The Petition for Temporary Suspension was based on Dusing’s actions in
posting the Facebook video, KBA File No. 21-DIS-0192, and a bar complaint filed by one of Dusing’s clients, Michael Hild. KBA File No. 21-DIS-0187. This latter matter was not addressed or mentioned by the KBA Trial Commissioner and does not factor into our decision.
10 also noted that while he had granted the KBA’s motion to give preclusive effect
to the Family Court’s order regarding the payment to Dr. Connor, that ruling
was ultimately irrelevant. While Judge Mehling’s ruling supported a finding of
such conduct, the Trial Commissioner, even without benefit of that ruling,
determined he would have reached the same conclusion on the basis of the
evidence he heard. As a sanction, the Trial Commissioner recommended a
three-year suspension without credit for the time Dusing has already been
temporarily suspended.
On subsequent motion by the KBA’s counsel, the Trial Commissioner
entered an Amended Report on June 12, 2023, correcting typographical errors
but reaching the same substantive conclusions. Dusing appealed to the Board
of Bar Governors. After the Trial Commissioner’s Amended Report had been
issued, Otis testified before the Kenton Family Court that no bribery of Dr.
Connor had occurred. Dusing moved the Board to consider that testimony,
which the Board denied. On October 25, 2023, the Board by an 11-5 vote
adopted the Trial Commissioner’s Amended Report and recommended Dusing
be suspended from the practice of law for three years without credit for time
served during his temporary suspension. Pursuant to SCR 3.370(8), Dusing
now seeks review by this Court.
11 II. ANALYSIS
A. Standard of Review
In disciplinary proceedings, the KBA bears the burden of proof, and facts
must be proven by a preponderance of the evidence. SCR 3.330(4). Following
a hearing before a Trial Commissioner, the Trial Commissioner shall issue a
report of findings of fact and conclusions of law containing charges made and
defense offered; the proceedings; the facts deemed proved by a preponderance
of the evidence; and recommended sanction. SCR 3.360(1). Following the
issuance of the report, either party may file a notice of appeal, SCR 3.360(4),
and the matter is then reviewed by the Board. SCR 3.370. Since this Court
makes final determinations of bar discipline, we have held that “the findings of
fact by the Trial Commissioner and the Board are advisory only. The Court
makes an independent review of the record and findings of fact and may ‘enter
such orders or opinion as it deems appropriate on the entire record.’” Ky. Bar
Ass’n v. Maze, 397 S.W.3d 891, 897 (Ky. 2013) (citation omitted) (quoting SCR
3.370(7) and (8)); see also Ky. Bar Ass’n v. Blum, 404 S.W.3d 841, 846 (Ky.
2013) (holding “we review alleged violations de novo[]”). We likewise consider
an appropriate sanction de novo. Ky. Bar Ass’n v. Steiner, 157 S.W.3d 209,
211 (Ky. 2005) (recognizing this Court’s “job to establish the appropriate
sanction[]”); see also Ky. Bar Ass’n v. Rice, 229 S.W.3d 903, 903 (Ky. 2007)
(imposing sanction of permanent disbarment where Board recommended five-
year suspension).
12 B. 21-DIS-0046 (Bakker litigation)
In 21-DIS-0046, the KBA brought five charges against Dusing alleging
six rule violations, all arising out his conduct in the Bakker litigation.
Perhaps the most serious charge is that Dusing assisted or induced his
counsel Otis to bribe Dr. Connor in violation of SCR 3.130(3.4)(b) and
3.130(8.4)(a). The former rule states “a lawyer shall not knowingly falsify
evidence, counsel or assist a witness to testify falsely, or offer an inducement to
a witness that is prohibited by law[;]” and the latter rule states “it is
professional misconduct for a lawyer to: (a) violate or attempt to violate the
Rules of Professional Conduct, knowingly assist or induce another to do so, or
do so through the acts of another[.]” We hardly need mention that bribing a
witness is a class D felony. See KRS 524.020 (providing “(1) [a] person is guilty
of bribing a witness when he offers, confers or agrees to confer any pecuniary
benefit upon a witness or a person he believes may be called as a witness in
any official proceeding with intent to: (a) Influence the testimony of that
person[]”).
Pertinent to this charge were Judge Mehling’s findings in the Bakker
litigation:
The other custodial expert was Dr. Ed Connor, who was retained by [Dusing]. This court should note some troubling aspects as to Dr. Connor. He is a well-known expert in this court and various Northern Kentucky courts. He was retained by Deanna Dennison, who was one of several attorneys who co-counseled with [Dusing] throughout the case; [Dusing] also represented himself pro se. After Dr. Connor’s report was issued and after Ms. Dennison had withdrawn from the case, [Dusing] took the position with this court that he had NOT retained Dr. Connor. The record reflects otherwise, and [Dusing] told Dr. Feinberg he had retained Dr. 13 Connor. Dr. Connor’s report was not disclosed consistent with [Ky. R. Civ. Proc.] 26.02(4)(a), 35.01 and 35.02 as an expert retained to testify. This court had to issue an order for a release of the report. Most troubling of all, Dr. Connor testified that after issuing his report, [Dusing]'s co-counsel Jeff Otis appeared at his office and offered him $5,000.00 if he would denote the report as preliminary. He then provided Dr. Connor with a large amount of extra records. Dr. Connor refused the request; he did review the additional records and issued an addendum indicating that the records reinforced his opinion. In [Bakker’s] rebuttal case she called Tina DeAngelis who had previously been the caretaker of the [Dusing]'s children and was in a sexual relationship with [Dusing]. See more findings below. DeAngelis testified that Dusing and Otis discussed Dr. Connor in her presence. [Dusing] instructed Otis to “manage” Dr. Connor by either paying him or suing him.
Before the Trial Commissioner, Dusing offered the following proof: his
own testimony denying instructing or offering a bribe and his claim that Dr.
Connor’s report was favorable thereby and thus no incentive to offer such a
payment existed. He argues Otis testified no bribe occurred.
Based on his review of the trial court record, the Trial Commissioner
concluded that Judge Mehling’s finding was entitled to preclusive weight in this
disciplinary proceeding. See Moore v. Commonwealth, 954 S.W.2d 317, 319
(Ky. 1997) (identifying four issues necessary to assert issue preclusion: “(1)
identity of issues; (2) a final decision or judgment on the merits; (3) a necessary
issue with the estopped party given a full and fair opportunity to litigate; (4) a
prior losing litigant[]”); Chesley v. Abbott, 524 S.W.3d 471, 482 (Ky. App. 2017).
Furthermore, we have applied this doctrine in attorney disciplinary
proceedings. Ky. Bar Ass’n v. Harris, 269 S.W.3d 414, 418 (Ky. 2008); Ky. Bar
Ass’n v. Horn, 4 S.W.3d 135, 137 (Ky. 1999). Additionally, the Trial
Commissioner stated he had reviewed the hearing transcript and the witnesses’
14 testimony and concluded that Judge Mehling’s finding was correct. Like the
Trial Commissioner, we conclude that Dusing caused Otis to offer a cash
inducement to Dr. Connor to change his report, and that in so doing Dusing is
guilty of violating both SCR 3.130(3.4)(b) and SCR 3.130(8.4)(a).
We also find Dusing guilty of all remaining charges in 21-DIS-0046.
Dusing filed at least seven repetitive motions for Judge Mehling’s recusal and
an inordinate number of separate appeals. Dusing’s litigation tactics exceeded
reasonable advocacy and were solely calculated to disrupt the Family Court
Proceedings. This conduct violated SCR 3.130(3.5)(d)’s prohibition against
engaging in conduct intended to disrupt a tribunal.
Next, Dusing’s scheme to disrupt the Family Court Proceedings also
extended to the making of threats of disciplinary complaints against both
Judge Mehling and Dietz. This resulted in two violations of SCR 3.130(3.4)(f).
The mere filing of such complaints, of course, is not afoul of the Rule, but
rather the violation occurs in the filing or threatening to file such complaints
“solely to obtain an advantage in any civil or criminal matter.” SCR
3.130(3.4)(f). Whether the disciplinary complaints have merit is tangential to
this issue. See Blum, 404 S.W.3d at 850 (stating “[i]n our view, it is ‘only
marginally consequential whether the target lawyer has in fact behaved
unethically.’ Rather, the ‘focal point here is the purpose of the threat and not
the conduct of the lawyer being threatened[]’” (quoting
Douglas R. Richmond, Saber–Rattling and the Sound of Professional
Responsibility, 34 AM. J. TRIAL ADVOC. 27, 61 (Summer 2010)). The evident
15 purpose of such threats was solely to intimidate the participants in these
judicial proceedings and thereby obtain a disruption in order to gain an
advantage. See Adams v. Ky. Bar Ass’n, 843 S.W.2d 898 (Ky. 1993) (unethical
and unprofessional conduct to threaten arrest for nonpayment of school
material fees). We thus find Dusing guilty of two violations of SCR
3.130(3.4)(f). And, because his campaign against Judge Mehling involved
intentionally or recklessly made false statements against the judge, Dusing also
violated SCR 3.130(8.2)(a): “[a] lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge[.]”
C. 21-DIS-0142 (Tapke litigation)
The next set of charges against Dusing arose out of his conduct in the
Tapke litigation. With respect to these charges, we find Dusing guilty of
violating SCR 3.130(3.5)(d) and SCR 3.130(4.4)(a) 6 insofar as his disruption of
the Family Court Proceedings included a barrage of motions and repetitive
emails to the GAL appointed in that case for the obvious purpose of burdening
the GAL and thereby further disrupting the proceedings. While Dusing
attempts to justify these actions regarding the GAL, we simply state his
excuses are non-availing.
6 SCR 3.130(4.4)(a) prohibits a lawyer from using “means that have no
substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”
16 In this matter, the KBA also charged a violation of SCR 3.130(3.1), which
states “[a] lawyer shall not knowingly bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so
that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law.” Our review of the Trial
Commissioner’s Report is that neither he nor the Board seems to have found a
violation of this rule. The record, however, is replete with multiple instances of
Dusing filing frivolous motions and appeals, and being sanctioned by Judge
Mehling for violations of CR 7 11 8. That Dusing violated this rule is amply
demonstrated by the Trial Commissioner’s summation of a Court of Appeals
Order, dated November 16, 2021:
[O]ver the course of the single year, Dusing had brought a total of 22 appellate actions against Tapke and/or Bakker consisting of three original actions and 19 direct appeals. All 3 original actions have been denied. The Court of Appeals found:
7 Kentucky Rule of Civil Procedure.
8 Cr 11 states in relevant part,
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
17 Finally, Dusing has expended an inordinate amount of this Court’s time and resources with frivolous motions and appeals. . . . Dusing has repeatedly attempted to [a]ppeal from interlocutory Orders and, stated quite frankly he should know better. We could discern no legitimate reason to explain why Dusing has chosen to proceed in these appellate cases. We can only conclude Dusing’s purpose is to harass, cause unnecessary delay, or needlessly increase the cost of litigation for Tapke and Bakker.
We conclude Dusing violated SCR 3.130(3.1), SCR 3.130(3.5)(d) and
3.130(4.4)(a).
D. 21-DIS-0192 (Facebook Video)
Finally, in 21-DIS-0192, the KBA charged that by posting the November
2, 2021, Facebook video, Dusing violated SCR 3.130(3.5)(d)’s prohibition
against attorneys engaging “in conduct intended to disrupt a tribunal.” We
find Dusing guilty of this charge as his posting of the Facebook video was
plainly intended to—and indeed did—disrupt the Family Court Proceedings.
Dusing, as he must, apologizes for posting the video and acknowledges
that it was a mistake of judgment. Dusing argues that he was not trying to
disrupt the tribunal but was, instead advocating for court reform. While he
claims the video was due to his frustration at the “corruption” between trial
court staff and Bakker’s counsel, the incident which led to the video was, in
fact, a standard email communication between counsel and court staff which
included both Dusing and his counsel, and for which no one was given
advantage or disadvantage. As to Dusing’s pitch for “court reform,” we refer to
the transcript of the video, supra, although we note that the transcript simply
18 does not do full justice to how completely inappropriate Dusing’s actions were
in this regard.
Furthermore, Dusing’s video tirade was entirely consistent with his
abusive and threatening language directed against the mothers of his children,
as recounted by Judge Mehling’s various orders. We recount just one such
instance, merely because including others only serves to unduly lengthen this
opinion, and the following actually serves to give insight into Dusing’s complete
lack of self-awareness. The Family Court noted Dusing also wrote Bakker,
“[y]ou are a horrible horrible horrible example for your children. . . . God
you’re such a little bitch victim I lose so much respect. Even if you are a
fucking super bitch nonsense woman it’s still important to me to be a man
of character, decency and respect.” (Emphasis added). Considering the full
record of the Family Court Proceedings, this must be the most ironic statement
in all of Kentucky’s jurisprudential history.
As to Dusing’s post-hoc protests that he did not intend his statements in
the video as a physical threat, we recognize that “blowing someone up” can
have alternative meanings. One is a literal meaning to harm physically or to
kill by an explosion, as with dynamite. The other is an idiomatic meaning to
make someone’s life a living hell, by posting scurrilous and libelous matter on
social media, engaging in frivolous litigation tactics, and the like.
On one hand, the fact that Dusing had just “blown up” Dietz and Keys,
in the idiomatic sense, by his Facebook video, and had a history of engaging in
frivolous litigation in the Family Court Proceedings supports the conclusion
19 that his threat to blow them up was, in fact, a threat of physical violence.
Additionally, family court litigation, unfortunately, is replete with incidents of
physical violence. See, e.g., Boyfriend kills girlfriend, her mother in shooting
outside Kentucky courthouse,” ABC News, Aug. 19, 2024
(https://abcnews.go.com/US/elizabethtown-kentucky-courthouse-
shooting/story?id=112953536) (last accessed Aug. 26, 2024). Any reasonable
person—and certainly any attorney with a history practicing in criminal
matters such as Dusing—would plainly understand that threatening to “blow
[someone’s] asses up” might be perceived as a physical threat of violence.
Dusing’s contention that he did not intend or expect Judge Mehling or the staff
attorney to see the video is simply untenable. Dusing posted the video in a
public social media forum and made pointed attacks on the staff attorney and
opposing counsel by name. Indeed, Dusing expressly addresses the staff
attorney and opposing counsel from the very opening lines of the video, stating
“[a]lright. Alice Keys and Stephanie Dietz, we need to have a little talk . . . .”
Plainly, it was inevitable for the video to make its way to its intended targets.
On the other hand, we find it difficult to believe that someone, especially
an attorney with 20 years’ experience, would post a physical threat on a public
forum. Common sense typically dictates that most people seeking to commit a
crime do not telegraph their plans. Doing so not only warns the intended
target but also tips off law enforcement. As to possible crimes, Dusing’s video
20 most approximated either menacing, 9 or terroristic threatening in the third
degree, 10 both of which are misdemeanors. Notably, Dusing was not charged
with either crime.
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). See Blum, 404
S.W.3d at 854 (noting that “disrupt” for purposes of the Rules means, among
other things, “to interrupt the normal course of unity of[]”).
III. SANCTION
As a sanction for Dusing’s misconduct, the Board recommends we
impose a three-year suspension running from the date of this Order without
credit for time served by Dusing during his temporary suspension. Dusing
argues that in the event we find him guilty, we impose a 180-day suspension
with credit for the time served since his temporary suspension became effective
on February 24, 2022. After careful consideration of the range of sanctions,
9 See KRS 508.050(1): “A person is guilty of menacing when he intentionally
places another person in reasonable apprehension of imminent physical injury.” 10 See KRS 508.080(1): “[A] person is guilty of terroristic threatening in the third
degree when: (a) He threatens to commit any crime likely to result in death or serious physical injury to another person[.]”
21 including possible permanent disbarment and a lengthier term of years’
suspension, we agree to impose the Board’s recommended sanction of a three-
year suspension from the date of this Order without any credit for Dusing’s
previous time of suspension since February 24, 2022.
We have previously noted that the purpose of lawyer sanctions includes
protecting “the public and the administration of justice from lawyers who have
not discharged, will not discharge, or are unlikely properly to discharge their
professional duties to clients, the public, the legal system, and the legal
profession.” Ky. Bar Ass’n v. James, 575 S.W.3d 687, 693 (Ky. 2019) (quoting
the ABA Standards). In determining an appropriate sanction, we often find
persuasive the ABA Standards for Imposing Lawyer Sanctions. Anderson v. Ky.
Bar Ass’n, 262 S.W.3d 636, 639 (Ky. 2008) (stating that “[w]hile the ABA’s
Standards are not binding authority on this Court by any means, they can at
times serve as persuasive authority.”). Relevant considerations in determining
an appropriate sanction include the lawyer’s mental state, the duties or ethical
obligations violated, and actual or potential injury to a client. See Ky. Bar
Ass’n v. Powell, 681 S.W.3d 152, 159 (Ky. 2023). We also find relevant the
extent to which the attorney’s conduct demonstrates a lack of respect for the
judiciary and the judicial process, brings the judiciary or the legal profession
into disrepute, threatens the fundamental integrity of the judicial process, or
otherwise results in injury to the judiciary or the profession. See, e.g., Mefford
v. Ky. Bar Ass’n, 474 S.W.3d 923, 924 (Ky. 2015). We also consider the
22 existence of any aggravating or mitigating factors. See Powell, 681 S.W.3d at
159.
As an initial matter, we reject out-of-hand Dusing’s proposed 180-day
suspension with credit for time already served. Our rules on reinstatement
explicitly recognize a difference between a suspension of fewer than 181 days,
and one of 181 days or more. Compare SCR 3.501 with SCR 3.502.
Admittedly, both processes may wind up in the same place, with a hearing
before the Character and Fitness Committee, but a suspension of less than 181
days includes an intermediate Inquiry Commission determination, for which
approval ends the process and automatically serves to restore the applicant to
practice. SCR 3.501(6). Our view is that Dusing’s behavior (i) is sufficiently
egregious that a 180-day suspension with credit would be tantamount to a slap
on the wrist, and (ii) has raised enough red flags that his reinstatement should
be viewed by as many persons as possible with its attendant burden of proof.
SCR 3.503.
Dusing argues that no Kentucky case has ever suspended an attorney for
his actions in representing himself, and that the purpose of lawyer disciplinary
proceedings is to protect the public and not to punish lawyers. As to Dusing’s
first point, he ignores that the Preamble to the Rules of Professional Conduct
explicitly provide otherwise:
VI. A lawyer's conduct shall conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer shall use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer shall demonstrate respect for the legal system and for those who serve it, including judges, other lawyers 23 and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.
Dusing’s actions in the Family Court Proceedings, although involving his
personal affairs, did not conform to the requirements of the law, that is, the
Rules of Professional Conduct. See, e.g., Ky. Bar Ass’n v. Morgan, 465 S.W.3d
447 (Ky. 2015) (holding attorney’s failure to provide support for his two minor
children in violation of court order justified 90 day suspension since an
attorney’s “duty and . . . responsibility . . . as an officer of the court [is] to
conduct [his or her] personal and professional life in such manner as to be
above reproach[]”). Dusing failed to use the law’s procedures for legitimate
purposes and instead intentionally sought to harass and intimidate others.
And, he clearly failed to demonstrate respect for the legal system, the judges,
especially Judge Mehling, and other lawyers, specifically attorneys Deitz and
Keys. In other words, 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.
As to Dusing’s second point, about the public protection being purpose of
lawyer discipline, he does not quite go far enough. “The purpose of lawyer
disciplinary proceedings is to protect the public and the administration of
justice from lawyers who have not discharged, will not discharge, or are
unlikely to properly discharge their professional duties to clients, the public,
the legal system and the legal profession.” James, 575 S.W.3d at 693; ABA
24 Annot. Stds. for Imposing Lawyer Sanctions (“ABA Standards”) § 1.1 (2d ed.
2019). Dusing ignores that the Family Court Proceedings involved the
administration of justice and that he, as a lawyer, failed to properly discharge
his professional duties. Again, the fact that he represented himself does not
give him a free pass.
The parties cite the ABA Standards for the framework to consider in
imposing a sanction: “In imposing a sanction after a finding of lawyer
misconduct, a court should consider the following factors: (a) the duty violated;
(b) the lawyer’s mental state; (c) the potential or actual injury caused by the
lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.”
ABA Standards § 3.0.
Duties Violated. Dusing violated SCR 3.130(3.1); SCR 3.130(3.4)(b); two
counts of SCR 3.130(3.4)(f); three counts of SCR 3.130(3.5)(d); SCR
3.130(4.4)(a); SCR 3.130(8.2)(a); and SCR 3.130(8.4)(a). We accept Dusing’s
argument that none of these counts violated duties to a client. However, as
pointed out by Bar Counsel, these violations are of duties owed to the public
and the legal system. The ABA Standards provide that “lawyers violate their
duties to the public when they commit a criminal act that reflects adversely on
their honesty, trustworthiness or fitness as a lawyer.” ABA Standards § 3.0 at
130. While this matter did not involve criminal charges, the KBA proved by a
preponderance of the evidence, at a minimum, that Dusing sought to bribe Dr.
Connor. And, “lawyers, as officers of the court, owe a duty to the legal system
not to engage in conduct prejudicial to the administration of justice or conduct
25 that involves dishonesty, fraud, deceit, or misrepresentation to a court.” Id.
All the remaining counts implicate Dusing’s duties to the legal system.
Dusing’s Mental State. The ABA Standards recognize three mental
states: intentionally, knowingly, and negligently. Id. at 133. These mental
states determine the degree of culpability, since intentional or knowing conduct
threatens more harm to the public, the legal system and the profession. Id.
(citing In re Van Dox, 152 P.3d 1183, 1186 (Ariz. 2007)). The ABA Standards
state that “intentional” misconduct “arises when a lawyer acts with a conscious
objective or purpose to accomplish a particular result.” Id. at 134. By
contrast, “knowing” misconduct “occurs when a lawyer acts with conscious
awareness of the nature or attendant circumstances of the conduct, but
without the conscious objective or purpose to accomplish a particular result.”
Id. at 135 (internal quotation and citation omitted). The least culpable mental
state is negligence which “occurs when a lawyer lacks awareness of a
substantial risk that circumstances exist or that a result will follow.” Id. at
136-37 (internal quotation and citation omitted).
The Trial Commissioner found that Dusing acted intentionally since he
acted repetitively and over a significant period of time. Bar Counsel agrees
with the Trial Commissioner. Dusing argues that his conduct was at most
knowing, and flowed from the understandable circumstance that he was
involved in litigating a family matter involving his children. We agree with the
Trial Commissioner that this extensive record reveals that Dusing’s violations
were intentional.
26 Potential or Actual Injuries Caused. The Trial Commissioner stated that
no proof was offered as to any serious or potential serious injury, but that “it is
not hard to imagine the toll taken on the litigants and the Court.” “Serious
injury, actual or potential” is not, however, the injury case law addresses. Our
jurisprudence is replete with cases in which no actual injury occurred, either
by failure to keep clients advised, failure to communicate, or failure to properly
account for trust funds (although client moneys were not lost). See, e.g.,
Mohon v. Ky. Bar Ass’n, 638 S.W.3d 417 (Ky. 2022) (finding multiple violations
and ordering suspension and conditions, including restitution). Rather, actual
injury can be inflicted on a client, the public, the legal system, or the
profession. ABA Standards § 3.0 at 138-39. Dusing’s actions caused real,
actual injury to the public, i.e., the attempted bribe of Dr. Connor, and to the
legal system, i.e., Dusing’s legal assault on the Court of Appeals (which ruled
Dusing is a frivolous litigant and created a procedure to address his appeals),
Judge Mehling, attorneys Dietz and Keys, and not least of all, the mothers of
his children, Tapke and Bakker, who have endured years of frivolous and
vexatious litigation. Dusing might pause to consider the emotional wellbeing of
his children who undoubtedly suffer as a result of his actions towards their
mothers.
Aggravating or Mitigating Factors. The Trial Commissioner found no
mitigating circumstance and did not address aggravating circumstances, other
than a lack of remorse.
27 Dusing claims a number of mitigating circumstances: a) improving the
court system through his Facebook video; b) substantial monetary sanctions
imposed by the trial court; c) loss of income due to suspension; d) attorney fees
incurred; e) reliance on independent counsel; f) high quality of prior legal work;
g) no prior discipline; h) public service in Ukraine following suspension; i)
extreme negative publicity throughout proceedings; and j) limitations on seeing
his children. We find the Ukraine public service is commendable and that the
lack of prior discipline is a mitigating factor. However, five of these “mitigating
circumstances” are merely the likely and foreseeable consequences of Dusing’s
actions. 11
As to aggravating factors, we agree with the Trial Commissioner that
Dusing has no remorse about his actions. Further, we agree with Bar Counsel
that he displayed a dishonest or selfish motive in that his actions were not on
behalf of a client, but only on his own behalf; Dusing’s actions were not an
isolated case, but instead involved a series of actions over a protracted period;
the actions were consolidated from two domestic cases and involved three
separate disciplinary files; Dusing was found guilty on all ten counts; Dusing
has substantial experience as an attorney, 20 years; and, arguably, the
attempted bribery of Dr. Connor was a criminal offense.
The Trial Commissioner recommended, and the Board approved a three-
year suspension without credit. Both parties have cited Blum, 404 S.W.3d 841,
11 An apt analogy is the boy who is convicted of murdering his parents and then
asks the court to show mercy because he’s an orphan.
28 in support of their positions. In Blum, an attorney was charged with five
violations of the Rules of Professional Conduct arising from his representation
of a schoolteacher charged with misconduct. Ultimately, Blum was found
guilty of only three violations, SCR 3.130(3.4)(f) (threatening disciplinary
charges to obtain advantage); SCR 3.130(3.5)(c) (conduct intended to disrupt a
tribunal); and SCR 3.130(8.2)(a) (knowing or recklessly false statements about
qualifications or integrity of judge, adjudicatory officer or public legal officer).
Superficially, Blum’s actions and these three charges, in a sense, parallel those
of Dusing. We note, however, the differences: 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. 12
We affirm the sanction recommended by the Board of Governors.
12 The two most severe sanctions typically imposed by this Court are a five-year
suspension and permanent disbarment. We are not, however, limited to five years. Because the sanction in this case is imposed without credit, it effectively results in a suspension exceeding five years.
29 ORDER
For the foregoing reasons, it is hereby ORDERED that:
1. Respondent, Benjamin Gerald Dusing, KBA No. 89178, is suspended
from the practice of law for a period of three years from the date of
this Order. Dusing shall not receive credit for the time temporarily
suspended by this Court on February 24, 2022.
2. Pursuant to SCR 3.390, Dusing, if he has not already done so, shall,
within twenty days from the entry of this Opinion and Order, notify all
clients in writing of his inability to represent them, and notify all
courts in which he has matters pending of his suspension from the
practice of law, and furnish copies of said letters to the Office of Bar
Counsel, assuming that this is necessary given that he is currently
suspended from the practice of law.
3. Pursuant to SCR 3.390, Dusing shall, to the extent possible and
necessary, immediately cancel and cease any advertising activities in
which he is engaged, assuming that this is necessary given that he is
currently suspended from the practice of law.
4. In accordance with SCR 3.450, Dusing is directed to pay the costs of
this action in the amount of $18,014.33, for which execution may
issue from this Court upon finality of this Opinion and Order.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Thompson, JJ.,
sitting. Bisig, J., concurs in part and dissents in part by separate opinion in
which Conley, J., joins. Nickell, J., not sitting.
30 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.
31 ANALYSIS
This Court’s review of attorney disciplinary matters is conducted de novo.
That is, “[t]he findings of fact by the Trial Commissioner and the Board are
advisory only. The Court makes an independent review of the record and
findings of fact and may ‘enter such orders or opinion as it deems appropriate
on the entire record.’” Kentucky Bar Ass’n v. Maze, 397 S.W.3d 891, 897 (Ky.
2013); see also Kentucky Bar Ass’n v. Blum, 404 S.W.3d 841, 846 (Ky. 2013)
(“[W]e review alleged violations de novo.”). We likewise consider an appropriate
sanction de novo. Kentucky Bar Ass’n v. Steiner, 157 S.W.3d 209, 211 (Ky.
2005) (“It is our job to establish the appropriate sanction.”). In other words, we
are not bound by the Board’s sanction recommendation, but rather may
increase or decrease the severity of the sanction as we deem appropriate.
Indeed, we may even impose permanent disbarment where the Board
recommends only suspension from the practice of law. See Kentucky Bar Ass’n
v. Rice, 229 S.W.3d 903, 903 (Ky. 2007) (imposing sanction of permanent
disbarment where Board recommended five-year suspension). In attorney
disciplinary proceedings the KBA bears the burden to prove the facts by a
preponderance of the evidence, while the respondent attorney bears the burden
of proving any credible defense to the charge. SCR 3.330(4); Steiner, 157
S.W.3d at 213.
I. 21-DIS-0192
In 21-DIS-0192, the KBA charges that by posting the November 2, 2021
Facebook video, Dusing violated SCR 3.130(3.5)(d)’s prohibition against
32 attorneys engaging “in conduct intended to disrupt a tribunal.” I agree with
the Majority that Dusing is guilty of this charge as his posting of the Facebook
video was plainly intended to—and indeed did—disrupt the Family Court
Proceedings.
Dusing apologizes for posting the video and acknowledges that it was a
mistake of judgment. Dusing asserts however that the video was not intended
to disrupt the tribunal. Rather, he asserts he posted the video as part of a
public advocacy effort to reform the courts. I am unpersuaded.
First, the credibility of Dusing’s contention that he posted the video in
righteous indignation at purportedly corrupt conduct in the Family Court
Proceedings is significantly undercut by the fact that the communications
between Dietz and Judge Mehling’s staff attorney were in no way indicative of
judicial corruption. In his testimony before the Trial Commissioner, Dusing
asserted that Dietz intentionally filed her motions late to keep them off the pre-
ruling docket, then raised the issue of the motions with the staff attorney, who
then designated the motion as “to be called” at motion hour. Perhaps most
obviously, the conduct of which Dusing complains was opposing counsel’s late
filing of the motion. Dusing offers no evidence that the court had any
involvement in deciding when Dietz would file her motions, or that the court’s
decision to place the late-filed motions on for hearing at motion hour was
somehow preferential treatment. Indeed, the ultimate result was simply that
one of Dietz’s motions was denied, with the other passed to motion hour for
consideration by Judge Mehling. Moreover, there was plainly no surreptitious
33 effort by opposing counsel to obtain beneficial judicial treatment, given that
Dusing and his counsel were included on all the communications at issue.
Quite simply, any reasonable attorney would have seen the
communications between Dietz and Keys as entirely anodyne and
unremarkable. And certainly, no reasonable attorney could possibly conclude
those communications warranted such an overwhelmingly vitriolic and public
diatribe. Indeed, 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.
Second, the extreme nature of Dusing’s tone and language also further
undermines the credibility of his assertion that the video was intended to
further his advocacy for judicial reform. The types of thinly veiled threats of
physical violence, ad hominem attacks, and coarse and abusive language used
by Dusing have no place in legitimate public discourse. I find it hard to
conclude that anyone, much less an attorney, could believe such language
would be appropriate, much less effectual, in persuading public opinion on a
need for judicial reform.
34 During the hearing before the Trial Commissioner, Dusing presented as
an intelligent and articulate speaker. From this I deduce both that Dusing is
capable of adopting an appropriate tone for public advocacy, and that he would
have known the tone employed in the video was ill-suited to the purpose of
advocating for judicial reform. I thus conclude that the video was not intended
to further any advocacy Dusing may have undertaken for reform of the court
system.
Tellingly, the extreme language used by Dusing in the video is instead far
more consistent with his previous personal attacks on others than with any
public advocacy. When considering Dusing’s defense of these statements as
legal reform, it is instructive as to his motive to note this record has additional
examples of Dusing’s use of similarly threatening, abusive, and bullying
language in personal attacks. For example, the Family Court noted in its
custody judgment that Dusing had made the following written statements
about his ex-wife:
Do I enjoy wearing Julie out? Why yes, yes I do. Toe across the
line. SLAP! Finger across the line. SLAP!!!! Will do this until the
cows come home. And then they just get tired and give up and
start doing the right thing not because they really want to do the
right thing, but b/c they’re just tired of getting SLAPPED! All.
Fucking. Day.
As the Majority notes, the Family Court further also found that Dusing wrote
Bakker “You are a horrible horrible horrible example for your children. . . . 35 God you’re such a little bitch victim I lose so much respect. Even if you are a
fucking super bitch nonsense woman it’s still important to me to be a man of
character, decency and respect.” He also wrote to Bakker
You are such a despicable human for crushing people and kids . . .
How many lives are you trying to ruin. . . . You are scum. Total
scum. You will pay for this . . . . You are a selfish, irresponsible,
kid-killing horror . . . a dike bit by cunt rag of a human to me . . . .
Now listen you stupid homewrecking kid-killing worthless tramp.
You are trash. You really are. Abort that baby or give it up for
adoption. You are no mother. Maybe you are going to do us all a
favor and die of cancer in a year or something . . . . You deserve to
rot in hell. . . . I hope you die.
Like these statements, the language in Dusing’s video launched repeated ad
hominem attacks laced with coarse and abusive language and thinly veiled
wishes of physical harm. Given this striking similarity, I conclude an
evident intention of Dusing’s Facebook video was to personally attack Keys and
Dietz, not to further any legitimate public advocacy for judicial reform.
Finally, I also conclude Dusing posted the video not only to personally
attack Dietz and Keys, but also more fundamentally to disrupt and control the
Family Court Proceedings. Tellingly, at the time Dusing posted the video he
had filed at least seven unsuccessful motions to disqualify Judge Mehling. In
posting his extreme and physically threatening video, Dusing publicly attacked
Judge Mehling’s chambers and the handling of his case, and also placed Judge 36 Mehling’s staff attorney in fear for her life. And of course, any reasonable
attorney—and particularly one with as much litigation experience as Dusing—
would know that such conduct would require the recusal of the judge. It is
thus unsurprising that after Dusing posted his video, Judge Mehling was
forced to recognize the appearance of impropriety that would arise from his
continued involvement in a case involving a litigant who had engaged in such
conduct and recuse sue sponte from the Family Court Proceedings. As such, I
must conclude that a significant motivation—and likely the primary
motivation—for Dusing’s posting of the video was to obtain the recusal of Judge
Mehling he had been unable to achieve by motion practice. Such an intention
was of course also an intention to disrupt the Family Court in its consideration
of his cases. See Blum, 404 S.W.3d at 854 (noting that “disrupt” for purposes
of the Rules means, among other things, “to interrupt the normal course of
unity of.”).
I am unmoved by Dusing’s post-hoc protests that he did not intend his
statements in the video as a physical threat. Any reasonable person—and
certainly any attorney with a history practicing in criminal matters such as
Dusing—would plainly understand that threatening to “blow [someones’] asses
up” is and will be perceived as a physical threat of violence. I am also
unpersuaded by Dusing’s contention that he did not intend or expect Judge
Mehling or the staff attorney to see the video. Dusing posted the video in a
public social media forum and made pointed attacks on the staff attorney and
opposing counsel by name. Indeed, Dusing expressly addresses the staff
37 attorney and opposing counsel from the very opening lines of the video, stating
“[a]lright. Alice Keys and Stephanie Dietz, we need to have a little talk . . . .”
Plainly, it was inevitable for the video to make its way to its intended targets.
In sum, it is apparent that Dusing did not post the video to remedy any
actual or even perceived corruption in the courts. Rather, I conclude that
Dusing seized upon the unremarkable communications between Dietz and staff
attorney Keys 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
II. 21-DIS-46
In 21-DIS-46, the KBA makes a number of additional charges against
Dusing all arising out his conduct in the Bakker litigation. The first I will
address is the KBA’s charge that in assisting or inducing his counsel Otis to
bribe Dr. Connor, Dusing violated SCR 3.130(3.4)(b). That Rule provides that a
lawyer shall not “knowingly falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness that is prohibited by law.”
Kentucky law prohibits offers of pecuniary benefit to a witness or potential
witness with intent to influence testimony. See KRS 524.020.
Dusing testified before the Trial Commissioner that he did not and would
not ask anyone to offer a bribe, nor would he expect that such a direction
would be followed. He also contends that Dr. Connor’s report was favorable
38 and thus he had no incentive to offer such a payment. He further points us to
testimony by Otis after the Trial Commissioner’s hearing in which Otis testified
there was no bribe. Again, after a review of the record, I am unpersuaded.
At an evidentiary hearing before the Family Court, Dr. Connor
explicitly testified that Otis offered him a $5,000 payment to say his
report was not yet complete:
[M]y report was complete. . . . And then Mr. Otis came to my office basically saying that there was additional information he wanted to give me to review and that – asserted that my report was not complete. And I stated that it was, and he offered the $5,000 basically to state that the report was not complete. . . . I was struck by his insinuation that there was so much more work to be done that he could offer me a certain amount of money to agree to that. And I do not agree to that.
I find Dr. Connor’s testimony particularly credible given that a former friend of
Dusing’s also testified to a conversation she heard between Dusing and Otis
about Dusing sending Otis “to manage Dr. Connor and get the – what they
wanted out of him. Get the answers they wanted. They were willing to pay, or
they were going to sue him personally.” Moreover, Dusing points us to no
motivation Dr. Connor would have had to falsely testify he had been offered
money to change his report.
And while Dusing contends Dr. Connor mistakenly believed he had been
retained by the court rather than Dusing, that in no way negates the
straightforward testimony from Dr. Connor that Dusing’s counsel offered him a
monetary payment to change his report. I also find unpersuasive Dusing’s
contention he had no incentive to bribe Dr. Connor because Dr. Connor’s
report was favorable him. As the Family Court noted in its judgment, Dr. 39 Connor recommended that Bakker have sole custody; recommended a very
limited parenting schedule for Dusing; indicated that Dusing was “self-
centered, degrading and demeaning” and “incapable of negotiation or
cooperation;” had concern about Dusing’s use of public humiliation to
discipline his children; and expressed concerns about child safety given
Dusing’s conduct. Dr. Connor’s report was certainly not favorable to Dusing,
and I find Dusing’s assertion that he had no reason to seek alteration of the
report uncredible.
Finally, while Otis may have testified after the hearing before the Trial
Commissioner that no bribe was offered to Dr. Connor, he certainly has strong
incentive to deny such criminal conduct. As such, I conclude that Dusing
caused Otis to offer a cash inducement to Dr. Connor to change his report, and
that in so doing Dusing is guilty of violating SCR 3.130(3.4)(b).
I also find Dusing guilty of both remaining charges in 21-DIS-46. First,
Dusing’s filing of at least seven repetitive motions for Judge Mehling’s recusal
and his filing of an inordinate number of separate appeals was also patently
part of a scorched earth litigation effort designed to complicate and disrupt the
Family Court Proceedings. The materials filed (including one motion to
disqualify with text 87 pages in length) were far beyond the bounds of any
reasonably zealous advocacy and were simply another tool used by Dusing in
his efforts to disrupt the Family Court Proceedings. This conduct violated SCR
3.130(3.5)(d)’s prohibition against engaging in conduct intended to disrupt a
tribunal, and I find Dusing guilty of this charge.
40 Second, Dusing’s barely disguised scheme to disrupt the Family Court
Proceedings also extended to the making of threats of disciplinary complaints
against both Judge Mehling and Dietz. It is of course not the mere filing of
such complaints that runs afoul of the Rules, but rather the filing or
threatening to file such complaints “solely to obtain an advantage in any civil
or criminal matter.” SCR 3.130(3.4)(f). It matters little whether the
disciplinary complaints have merit. See Blum, 404 S.W.3d at 850 (“In our view,
it is ‘only marginally consequential whether the target lawyer has in fact
behaved unethically.’ Rather, the ‘focal point here is the purpose of the threat
and not the conduct of the lawyer being threatened.’”). Considered more
broadly in the context of Dusing’s extreme efforts to thwart the Family Court
and its proceedings, it is apparent his repeated threats of disciplinary
complaints were part and parcel of his overall scheme to scuttle his cases
before Judge Mehling. Perhaps most telling is Dusing’s filing of a motion
whose ominous title included “Notice of Judicial Conduct Complaint, Notice of
Referral to State and Federal Investigative Authorities, [and] Notice of KBA
Investigation.” The evident sole purpose of such threats was to intimidate the
participants in these judicial proceedings and thereby obtain a disruption in
order to gain an advantage. I thus also find Dusing guilty of violating SCR
3.130(3.4)(f).
III. 21-DIS-142
The third and final set of charges against Dusing arise out of his conduct
in the Tapke case. With respect to these charges, I find Dusing guilty of
41 violating SCR 3.130(3.5)(d) and SCR 3.130(4.4)(a) insofar as his campaign to
disrupt the Family Court Proceedings extended to a barrage of motions and
repetitive emails to the GAL appointed in that case for the obvious purpose of
burdening the GAL and thereby further disrupting the proceedings.
Dusing contends he believed the GAL made a misogynistic comment in
referring to Dusing’s counsel Lawrence as his “girlfriend.” In response, Dusing
sent the GAL an email stating “This is the last time I use words to express my
deepest objection to your conduct in this litigation both personally and
professionally. . . . Your decisions and conduct moving forward should take
this into account.” As with his numerous other instances of deploying wildly
inappropriate invective during the Family Court Proceedings, the extreme and
inappropriate nature of this blatant threat of physical violence reveals Dusing’s
true purpose was not to remedy inappropriate misogynistic comments, but
rather to burden and threaten the GAL. Moreover, his abusive conduct became
so overwhelming that the GAL was forced to file a motion for a protective order.
Again, it stretches credulity that Dusing’s conduct was mere advocacy. Rather,
considered in the context of Dusing’s other behavior, it is plain his conduct
against the GAL was simply part of his broader campaign to disrupt the Family
Court Proceedings and burden its participants with overwhelming litigation
tactics and threats of physical violence. As such, I also find Dusing’s conduct
in the Tapke Case violative of SCR 3.130(3.5)(d) and 3.130(4.4)(a).
42 IV. An Appropriate Sanction
As a sanction for Dusing’s misconduct, the Board recommends we
impose a three-year suspension running from the date of this Order without
credit for time served by Dusing during his temporary suspension. Dusing
argues that in the event we have found him guilty, we impose a 180-day
suspension with credit for the time served since his temporary suspension
became effective on February 24, 2022. After careful consideration, I conclude
that only a ten-year suspension would be sufficient to address Dusing’s severe
misconduct.
In determining an appropriate sanction, we often find persuasive the ABA
Standards for Imposing Lawyer Sanctions (the “ABA Standards”). Anderson v.
Kentucky Bar Ass’n, 262 S.W.3d 636, 639 (Ky. 2008) (“While the ABA’s
Standards are not binding authority on this Court by any means, they can at
times serve as persuasive authority.”). Relevant considerations in determining
an appropriate sanction include the lawyer’s mental state, the duties or ethical
obligations violated, and actual or potential injury to a client. See Kentucky
Bar Ass’n v. Powell, 681 S.W.3d 152, 159 (Ky. 2023). We also find relevant the
extent to which the attorney’s conduct demonstrates a lack of respect for the
judiciary and the judicial process, brings the judiciary or the legal profession
into disrepute, threatens the fundamental integrity of the judicial process, or
otherwise results in injury to the judiciary or the profession. See, e.g., Mefford
v. Kentucky Bar Ass’n, 474 S.W.3d 923, 924 (Ky. 2015) (finding permanent
disbarment warranted where attorney’s “appalling and reprehensible conduct
43 besmirche[d] the dignity of the profession.”). We also consider the existence of
any aggravating or mitigating factors. See Powell, 681 S.W.3d at 159.
Here, when considered in toto it is readily apparent that Dusing’s
misconduct was all part of an intentional effort to disrupt and thwart the
Family Court Proceedings and to inflict injury on the participants in those
proceedings. Neither Dusing’s multiple threats of physical violence nor his
efforts to induce Dr. Connor to alter his report can reasonably be seen as
merely negligent. Moreover, Dusing repeatedly violated a number of ethical
duties, including the prohibitions against intentionally disrupting judicial
proceedings, attempting to induce witnesses to provide false evidence,
threatening disciplinary complaints for the sole purpose of gaining an
advantage in the proceedings, and harassing and burdening participants in the
legal process. And while Dusing was both client and lawyer and thus the only
client injured was himself, he also plainly demonstrated a profound contempt
for the judiciary and the judicial process. He did so publicly in a campaign
that included, at best, multiple thinly disguised threats of physical violence
against participants in the legal process. Such public conduct by an officer of
the court not only brought the legal profession into disrepute but also
threatened the fundamental integrity of the Family Court Proceedings and the
judicial process more generally. These factors weigh heavily in favor of a more
severe sanction.
I further note the existence of additional aggravating factors that further
militate in favor of a far more severe sanction than the three years proposed by
44 the Board of Governors. Aggravating factors supporting a more severe sanction
in lawyer disciplinary matters include “prior disciplinary offenses, a pattern of
misconduct, multiple offenses, substantial experience in the practice of law,
and refusal to acknowledge the wrongful nature of [the] conduct.” James, 575
S.W.3d at 693. Here, I acknowledge that Dusing was not the subject of
disciplinary action before the present proceedings. However, as noted above,
his conduct consisted of multiple offenses that violated numerous ethical
obligations in furtherance of a blatant and cynical scheme to thwart and
undermine the very judicial process itself. Moreover, Dusing has at most
merely paid lip service to acknowledging responsibility for his misconduct. For
example, rather than acknowledging the profoundly troubling nature of his
physical threats, he chose instead to describe them as poor word choices.
Similarly, Dusing has also repeatedly sought to lay blame for much of the
conduct at issue at the feet of his counsel. Perhaps most disturbingly, Dusing
wholly fails to own his misconduct against staff attorney Keys and the GAL,
instead seeking to shift blame to them by repeating plainly false allegations of
misconduct and corruption where no such behavior occurred. His unflinching
defense of his actions weighs against a shorter sanction. Dusing shows neither
true accountability for his behavior nor resolve to take steps to remedy the
issues leading to his serious violations.
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
45 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.
As for mitigating circumstances, I again acknowledge that Dusing has no
history of disciplinary violations before the present proceedings. I also
acknowledge that Dusing had a history as an accomplished and respected
attorney, and that he has not been sanctioned in the Family Court Proceedings
since a new judge was appointed. However, aside from these facts I perceive no
further mitigating circumstances. Dusing urges as additional mitigating
factors that he has suffered significant financial sanctions and attorney fees in
the Family Court Proceedings, negative publicity, and interference with his
ability to see his children. However, those are simply the consequences of
Dusing’s misconduct that in no way mitigate his culpability or the injurious
nature of his conduct. Like the Trial Commissioner, I also find irrelevant
Dusing’s post-suspension work in Ukraine. While laudable, I fail to see how
those efforts in any way lessen the severity of Dusing’s misconduct or his
culpability.
In sum, I find that there are numerous severe aggravating
circumstances, offset only by the fact that Dusing had a record as an
accomplished and respected attorney without a disciplinary history. Of course,
46 Dusing’s status as an accomplished and respected attorney cuts both ways, as
the public loss of respect for the legal profession is greater when our brightest
representatives behave in such a profoundly troubling way. The behavior is a
callous threat to our very system of justice. As such, I conclude that the
factors considered overwhelmingly weigh in favor of a far more severe sanction
than the three-year suspension recommended by the Board.
I am not persuaded by the cases relied upon by Dusing in arguing that a
lesser sanction is warranted. Those cases are readily distinguishable. First,
while several involved distasteful and disruptive conduct by attorneys, none
involved bribery, threats of physical violence, and a concerted and direct attack
on the fundamental integrity of the judicial process itself like that at issue
here. See, e.g., Blum, 404 S.W.3d 841 (imposing 181-day suspension for
attorney’s threatening to file disciplinary complaints, making repetitive and
unnecessary filings, and making false or reckless statements regarding hearing
officer’s integrity); Kentucky Bar Ass’n v. Lavit, 351 S.W.3d 210 (Ky. 2011)
(imposing public reprimand for attorney’s intemperate outburst that reflected
lack of civility, loss of dignity, and use of aggressive and bullying tactics). And
while others involved significantly serious misconduct, again those cases did
not involve conduct so apparently designed and capable of undermining the
judicial process. See, e.g., Kentucky Bar Ass’n v. Kaiser, 814 S.W.2d 923 (Ky.
1991) (imposing three-year suspension for attorney’s unlawful practice and
dishonesty in Ohio); Wickersham v. Kentucky Bar Ass’n, 585 S.W.3d 766 (Ky.
2019) (imposing three-year suspension for attorney driving intoxicated with
47 child in car); Kentucky Bar Ass’n v. Embry, 152 S.W.3d 869 (Ky. 2005)
(imposing five-year suspension for drug possession and manslaughter).
Unsurprisingly, we have little precedent for guidance as to an
appropriate sanction for such extreme misconduct as confronts us in this case.
Notably, we have previously found permanent disbarment warranted for
attorneys engaged in bribery. Kentucky Bar Ass’n v. Taylor, 993 S.W.2d 950,
951 (Ky. 1999) (agreeing with Board recommendation of permanent disbarment
where attorney made kickback payments to bank loan officer). Perhaps more
significantly, however, we note that Dusing engaged in not one, but rather
multiple acts that demonstrated overwhelming disregard for the judicial
system. He publicly threatened physical violence against court staff. He
threatened physical violence against a GAL. And he attempted to monetarily
induce a witness to change evidence. Considered as a whole, his conduct was
at best a thinly veiled effort to deploy bribery, threats of physical violence,
disciplinary complaints, and inappropriate scorched earth litigation tactics to
bend the Family Court Proceedings to his whim. Such conduct manifests a
wholesale disregard for the honor and integrity of the judicial system and
process. Where, as here, such conduct is undertaken by an attorney, it also
stains the dignity and reputation of the legal profession.
I conclude that a three-year suspension for the type of conduct we have
before us here is literally unthinkable. See Mefford, 474 S.W.3d at 924
(permanent disbarment warranted for “appalling and reprehensible conduct”
that “besmirche[d] the dignity of the profession.”). Indeed, on the facts before
48 us, permanent disbarment would be consistent with the ABA Standards, which
provides that “[d]isbarment is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional with the
intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public, or the legal system.” ABA
Standards § 7.1. Here, Dusing violated his ethical obligations as a Kentucky
lawyer in furtherance of an effort to disrupt and control the Family Court
Proceedings and to procure false evidence from Dr. Connor in his favor by
means of a financial bribe. Such conduct was plainly for Dusing’s benefit.
Moreover, Dusing’s conduct was a blatant attack upon the integrity of the
judicial process, showed overwhelming disregard and contempt for that
process, and resulted in serious public injury to the honor and integrity of the
judiciary and the dignity and reputation of the legal profession as a whole.
Thus, in considering the relevant factors and the totality of the circumstances,
I conclude that only the significant and severe sanction of a ten-year
suspension is sufficient to address Dusing’s gravely contemptuous, unethical,
and violent conduct.
Conley, J., joins.
ENTERED: September 26, 2024
______________________________________ LAURANCE B. VANMETER, CHIEF JUSTICE
Related
Cite This Page — Counsel Stack
Benjamin Gerald Dusing v. Kentucky Bar Association, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-gerald-dusing-v-kentucky-bar-association-ky-2024.