KENTUCKY BAR ASSOCIATION V. THEODORE H. LAVIT
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KENTUCKY BAR ASSOCIATION
V.
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MOVANT
IN SUPREME COURT
RESPONDENT
THEODORE H. LAVIT
OPINION AND ORDER
Theodore H . Lavit, KBA Member No . 40300, whose bar roster address is
P. O . Box 676, Lebanon, Kentucky 40033, was admitted to practice law in
Kentucky in 1964 . The Trial Commissioner recommended a public reprimand
for violations of the Kentucky Rules of Professional Conduct .' Neither Lavit nor
the KBA filed a notice of appeal under SCR 3 .360(4), so we now consider the
record before us and enter a final order adopting the Trial Commissioner's
recommendation in accord with SCR 3 .370(10) .
In December 2008, the Inquiry Commission issued a five-count charge
against Lavit (KBA File 15396) for violating SCR 3 .130-3 .2, 3 .130-3 .3(a)(1),
3 .130-3 .4(c), 3 .130-3 .4(e), and 3 .130-3 .5(c) . After Lavit filed his answer to the
charge, the Inquiry Commission issued an additional three-count charge
(KBA File 16700), which alleged violations of SCR 3 .130-1 .3, 3 .130-3 .5(c), and
Although the disciplinary hearing took place in 2010, the acts that gave rise to this
matter and the Inquiry Commission's issuance of charges took place before the
July 2009 amendments to the Kentucky Rules of Professional Conduct went into
effect . As such, we apply the Kentucky . Rules of Professional Conduct in effect
before July 2009 .
3 .130-4 .4(a) in March 2009 . The Inquiry Commission consolidated both files,
and a Trial Commissioner was assigned to hear the case. The Trial
Commissioner conducted an evidentiary hearing in the matter during June
2010, at which time the KBA offered exhibits as evidence; and both parties
presented witness testimony .
KBA File 15396
KBA File 15396 contains a five-count charge issued by the Inquiry
Commission more than eight years after the complained-of conduct occurred
during the course of a Marion Circuit Court jury trial. Lavit represented the
plaintiff in a breach of contract action . Although the jury was informed the
trial would last two to three days, the trial lasted six days before eventually
ending when the trial court declared a mistrial .
The Trial Commissioner stated, "[t]he length of the trial was the result of
repetitive questions, numerous objections and very lengthy bench conferences ."
As a result, Lavit received charges of violating the following rules : SCR 3 .1303 .2 (Count 1),2 3 .130-3 .3(a)(1) (Count 11),3 3 .130-3 .4(c) (Count 111),4 3 .130-3 .4(e)
(Count IV),5 and 3 .130-3 .5(c) (Count V) . 6
3
A lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client.
A lawyer shall not knowingly: (1) Make. a false statement of material fact or law to
a tribunal . . . .
A lawyer shall not . . . [k]nowingly or intentionally disobey an obligation under the
rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists.
A lawyer shall not . . . [i]n trial . . . allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by admissible evidence
In an exhaustive review of the March 2000 jury trial, the Trial
Commissioner found that conduct during the trial was "out of control,
[however], the fault for that . . . appears to lie equally with counsel for both
parties and the trial court as well." The Trial Commissioner noted:
Excluding the first day of trial which was devoted to voir dire, the
substance of the trial consumed four full days and two hours on
the fifth day before the mistrial was declared . Total trial time was
32 hours and 51 minutes . Throughout the trial, Defendant's
Counsel made repeated objections ; the first being less than eight
minutes into Mr. Lavit's opening statement . Each objection
resulted in a bench conference. There were 113 bench conferences
in all totaling 15 hours and 38 minutes . The record reflects that
51 % of the trial was devoted to bench conferences. Of those
113 bench conferences, Mr . Lavit's opposing counsel, Hon. Philip
George, initiated 87 . Mr. Lavit initiated 11, and his co-counsel,
Mr. Humphress initiated 5 . Judge Bertram called for 10 of the
bench conferences .
It is disingenuous to saddle Mr . Lavit with all of the blame, or even
most of the blame for the inordinate and inexplicable delays that
occurred . Of the 87 objections voiced by Mr. George, only
20 resulted in a favorable result or favorable ruling. Of the
remaining 67 objections voiced by Mr. George, either no action was
taken or the objection was denied or overruled. All objections,
however, resulted in bench conferences which, in the Trial
Commissioner's opinion, were unnecessarily lengthy and some
were simply unnecessary at all .
The Trial Commissioner agrees with Mr. Lavit that it appears that
the charges issued by the Inquiry Commission adopted the finding
and conclusions contained in Judge Bertram's Order Declaring a
Mistrial . A review of the record, however, and the evidence
presented at the hearing on this matter do not support much of
those findings and conclusions .
[or] assert personal knowledge of facts in issue except when testifying as a
witness . . . .
A lawyer shall not . . . [e]ngage in conduct intended to disrupt a tribunal .
KBA File 16700
KBA File 16700 contains a three-count charge issued by the Inquiry
Commission related to Lavit's representation of a client in a 2008 domestic
relations matter. The charges include violations of SCR 3 .130-1 .3 (Count I), 7
3 .130-3 .5(c) (Count II),$ and 3 .130-4 .4(a) (Count II1) .9 The first charge is a
result of Lavit's failure to appear at a scheduled mediation, and the two
remaining charges arise from his behavior during a hearing on a child
visitation issue .
KBA alleged Lavit violated SCR 3.130-1 .3 when he failed to appear at a
mediation in March 2008 . Lavit stated he was unable to attend the mediation
because he was participating in a hearing regarding a child visitation matter .
The mediation was scheduled by notice from the mediator, and the hearing was
scheduled by court order.
At the disciplinary hearing before the Trial Commissioner, Lavit testified
he believed he could successfully juggle appearances at the court proceeding
and the mediation . Additionally, Lavit testified that he recalled communicating
to the mediator in some manner (perhaps hand motions) that he was present
and would return . The Trial Commissioner accepted Lavit's explanation
stating:
A lawyer shall act with reasonable diligence and promptness in representing a
client .
A lawyer shall not . . . [e]ngage in conduct intended to disrupt a tribunal .
In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person . . . .
Experience tells us that scheduling conflicts will inevitably occur.
The conflict that occurred in this case would have been avoided if
the morning mediation had been successful or if the hearing on the
visitation issue had not consumed the apparently unanticipated
amount of time that it actually took. It should also be noted that
Mr . Lavit objected to hearing the motion . At the beginning of the
hearing he stated to the Court: "We would severely object that we
do anything today with respect to his motion to take these children
to another country without a permanent award of custody (and) in
that regard, the Court would probably need to hear several hours
of testimony ." Had that objection been sustained, the conflict
would not have occurred.
Consequently, the Trial Commissioner did not find by a preponderance of the
evidence that Lavit committed any violation of his duty to act with reasonable
diligence and promptness.
Counts II and III arose from KBA allegations that Lavit violated the
Kentucky Rules of Professional Conduct when he verbally attacked opposing
counsel during a hearing . On these counts, the Trial Commissioner found that
Lavit yelled at opposing counsel while opposing counsel questioned Lavit's
client . During the course of the outburst, Lavit upbraided opposing counsel,
interrupted the trial court, and reduced his own client to tears. The report of
the Trial Commissioner stated :
In over thirty years of experience, the Trial Commissioner does not
recall having witnessed such a scene by a member of the bar. The
record reflects contempt for the Court as well as opposing counsel ;
a complete lack of civility, and a loss of dignity . Although the
record tends to support Mr. Lavit's claim, offered in defense of the
charges, that McCain had made repeated interruptions and
objections, such does not justify the intemperate outburst that
ensued . Mr. Lavit's remedy was to seek the intervention of the
Court . In failing to do so, and resorting to the abrasive and
bullying tactic he employed, Mr. Lavit failed to demonstrate respect
for the legal system, Judge Bertram, and opposing counsel . . . .
There is [no] question in the Trial Commissioner's mind that
Mr . Lavit's outburst can be accurately characterized as abusive
and obstreperous . He unnecessarily engaged in theatrics and
belligerence with the intent to disrupt the tribunal and intimidate
and embarrass opposing counsel .
By a preponderance of the evidence, the Trial Commissioner found that Lavit
violated SCR 3 .130-3 .5(c) and SCR 3 .130-4 .4(a) .
CONCLUSIONS
In KBA File 15396, the Trial Commissioner found Lavit not guilty on all
counts. In KBA File 16700, the Trial Commissioner found Lavit not guilty of
violating SCR 3 .130-1 .3 (Count I) . But the Trial Commissioner did find Lavit
guilty of violating SCR 3 .130-3 .5(c) (Count II) and 3 .130-4 .4(a) (Count III) . In
considering the recommended sanction, the Trial Commissioner considered the
following aggravating factors :
1)
Lavit's history of disciplinary offenses;
2)
A pattern of misconduct ;
3)
Multiple offenses - although there were two separate
findings of guilt, it is noted that both charges arise from the
same incident ;
4)
Refusal to acknowledge the wrongful nature of the conduct ;
5)
Lavit's substantial experience in the practice of law -admitted to the Bar in 1964 ; and
6)
Lavit's misconduct was of a public nature .
Based on these factors, the Trial Commissioner recommended that Lavit
receive a public reprimand . Accordingly, we now enter a final order adopting
the Trial Commissioner's recommendation in accord with SCR 3.370(10)
because neither party filed a notice of appeal.
Based upon the foregoing, the Court orders:
1)
Theodore Lavit is found not guilty of violating SCR 3 .130-3 .2,
3 .130-3 .3(a)(1), 3 .130-3 .4(c), 3 .130-3 .4(e), and 3 .130-3.5(d) (Counts I-V) as
alleged in KBA File 15396;
2)
Theodore Lavit is found not guilty of violating SCR 3 .130-1 .3
(Count I) as alleged in KBA File 16700 ;
3)
Theodore Lavit is found guilty of violating SCR 3 .130-3 .5(c)
(Count II) and 3 .130-4 .4(a) (Count III) as alleged in KBA File 16700 for which
he is reprimanded by this Court; and
4)
Under SCR 3.450, Theodore Lavit is directed to pay all costs
associated with these disciplinary proceedings against him in the total amount
of $3,313 .54, for which execution may issue from this Court upon the finality
of this Opinion and Order.
All sitting. Minton, C.J. ; Abramson, Cunningham, Noble, and Venters,
JJ :, concur . Schroder and Scott, JJ ., concur but would apportion costs .
ENTERED : June 16, 2011 .
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