Appellate Court Finds Kentucky Bar Violated Attorney’s Rights In Criticism of Judge

The United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated the rights of John M. Berry Jr. who was threatened with an ethics charge after criticizing the state Legislative Ethics Commission. In an important victory for free speech, the panel found that the bar violated the first amendment rights of the attorney.

The bar sent Berry a warning that his criticism of a state judge could result in punishment for lawyers who make reckless or false comments about judges. We have previously discussed the trend of cases where lawyers have been charged over their criticism of judges. I have been critical of those cases on first amendment grounds.

Barry challenged the integrity of a ruling dismissing an ethics complaint against Senate President David Williams. Here is the set up by the panel on the facts:

John Berry, an attorney, attended a public session of the Kentucky Legislative Ethics Commission regarding alleged fund-raising violations by Senate President David Williams. Berry was unhappy with how the session was conducted—the Commission closed the session to the public but allowed Williams to remain—and Berry drafted a letter expressing his displeasure. The letter stated that the Commission’s procedures could cause the public to think that the “deck was stacked.” The Commission complained of the letter to the Kentucky Bar Association’s Inquiry Commission. After investigating the matter, the Inquiry Commission issued a letter warning Berry that his conduct violated Kentucky Rule of Professional Conduct 8.2(a), and advising him to refrain from similar conduct in the future. After exhausting his state remedies, Berry brought this First Amendment challenge to Rule 8.2(a). The district court granted summary judgment for the KBA. This decision was improper because Rule 8.2(a) is unconstitutional as applied to Berry’s speech.

What is astonishing is that the letter has raised a valid point in relatively moderate language. On October 5, 2007, Berry wrote:

The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order . . . that exonerated him, was contrary to the undisputed evidence that was presented.

It is astonishing that any bar official would consider such a letter to be worthy of a referral, let alone possible punishment. What is even more astonishing is that the Bar President and counsel would persist in litigating this case — asserting the right to punish lawyers for speaking out in the public interest.

The panel drew a distinction between opinion and false statements:

An opinion can “be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Yagman, 55 F.3d at 1438–39 (citing Milkovich, 497 U.S. at 21)). An opinion relies on implied facts where a speaker utters an opinion without providing the underlying factual basis. Take, for example, a statement by A to B, “‘I think [C] must be an alcoholic.’ A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.” See Restatement (Second) of Torts § 566, cmt. c, illus. 3. If A has no factual basis to support the assertion, then the statement would be actionable even if couched as A’s opinion. See Yagman, 55 F.3d at 1439.

Notably, the Yagman case involved a far more serious and pointed criticism but was found protected by the first amendment. In that case, an attorney was sanctioned by a judge and went public with a claim that the judge “has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-[S]emitism.” Id. The court found that the three lawyers mentioned were in fact Jewish and that the lawyers were all sanctioned by the judge. The court found that charge of anti-Semitism was an opinion that was based on stated facts of the religion of the attorneys and their being sanctioned.

Notably, the panel reserved judgment on even more serious or offensive comments by lawyers: “We also take no position on the constitutionality of sanctioning a lawyer’s profanity or threats directed against the courts, or other examples of a lawyer’s unmitigated expression of disrespect for the law, even outside the courtroom. Nothing like that was going on in this case.”

This type of prosecution has occurred more often in other countries. I have spoken on multiple occasions to Kentucky bar groups and I have always found the state to be the home of truly outstanding lawyers, including our friend Frank Mascagni. I am for that reason astonished by the lack of judgment shown in this litigation by bar officials. While the Kentucky Bar Association President W. Douglas Myers said the bar would accept the judgment, a more welcomed response would have been an apology on the part of the bar.

Here is the opinion: 12a0231p-06

Source: Courier Journal

14 thoughts on “Appellate Court Finds Kentucky Bar Violated Attorney’s Rights In Criticism of Judge”

  1. There are few outside the judicial arena that can cure the judicial and prosecutorial corruption that abound in our once great nation. I will, and will many Americans stand behind those that do have the knowledge, will and courage to correct both the abrogations of the Constitution, our rule of law that can be changed by lawful means, and the usurpations of individual rights, they have allowed. Bravo to guys like this who are willing to speak out and stand behind their constructive opinions.

  2. OT but thought you might be interested

    9/11 judge snubs lawyers


    Last Updated: 5:07 AM, July 29, 2012

    Posted: 12:00 AM, July 29, 2012

    The city must fork out another $5 million to 10,000 Ground Zero workers — and their lawyers can’t take a cut of it, a judge has ruled.

    US District Judge Alvin Hellerstein says the “contingency payment” was promised under a $680 million settlement if plaintiff lawyers held down the number of new suits filed in the next year at 120 or fewer.

    About 300 new claims were filed, so the city refused to pay.

    But most were quickly dropped after passage of the Zadroga 9/11 Victim Compensation Act in January 2011.

    Only the 15 to 20 suits still in court should count, Hellerstein said.

    Besides ordering the $5 million payout, the judge barred lawyers for the workers from taking an extra 25 percent fee.

    Read more:

  3. The various bar disciplinary committees are out of control. They are, in many instances, just cover-up specialists and enforcers for the judges and the big firms. The corruption is so far out of normal bounds that they don’t even pretend to be anything but a collection of “winkers and nodders” and anybody who objects to that being the only police force for lawyers is labeled a crazy, marginalized or, if they are punishable, punished. (Non-lawyers are not punishable per se but they can be hurt in all the secret ways that judicial pow-wows provide, and if they object, they’re conspiracy theorists or worse.)

    A prestigious professor of legal ethics, Michael S. Frisch, Esq. of Georgetown Law School, has written an extensive article about the utter failure of the Board on Professional responsibility in Washington, DC; it appears to have been ignored, although there is no possible answer to any of the charges Professor Frisch makes. [SEE “No Stone Left Unturned: The Failure of Attorney Self-Discipline in the District of Columbia”]

    The bottom line is that the ethics boards in the states are, for the most part, “ethics boards.” They really function to scare citizens into thinking that they are not allowed to publicize their complaints against lawyers. They are worse than useless because they do active harm (as they did in Kentucky, in the case cited, since they operated to take away a person’s first amendment rights under color of “ethics”).

    I say tear ’em down. Let attorneys be like everybody else, out there being disciplined by a free market, where folks post their own opinions of the lawyers they have fired, and where they can take their chances with ordinary consumer protection agencies of the state and outfits like the better business bureau. So long as “attorney ethics boards” are the only games in town, some attorneys will get destroyed by the vagaries of the little pi**y potentates running these sinecures while others — with good judge connections and the like — can get away with murder.

  4. The limitation on Lawyers free speech rule was orginally drafted by the ABA and adopted by 49 states. Several states have recently removed the prohibtion in said model rule that allows a lawyer to be sanctioned for “true but reckless” statements. In the Kentucky KBA case against attorney John M. Berry Jr, a former state senator, the Sixth Circuit said the rule as applied was unconstitutional. This case was the subject of a novel I wrote titled Alice VS. Wonderland, and the sequal A Parliament of Owls which will be released in August 2012.
    Judge Stan Billingsley (Ret.) Senior Editor of and Kentucky Legal News.

  5. Jonathan, thanks for posting the article. This case has been followed by many lawyers here in Kentucky with a great deal of interest. For additional background see:

  6. The former slave states that remain Unreconstructed and deny criminal defendants a fair trial under the due process clause of the 14th Amendment are treasonous and the state court judges on their district, appellate and supreme courts need to be criticised and called out for being due process of law thieves. If I was some anonymous dog I would call those snakes what they are.

  7. I almost wrote about this yesterday. It is an amazing rebuke to the State Bar Association and rightfully so.

  8. Other states have this same damn dumb ethics rule….. At least the 6th Circuit applies to them as well…..

  9. The State Supreme Court of the great Unreconstructed State of Mizzura sanctioned a lawyer several years back for being constructively critical of an appellate court opinion. In re George Westfall. Kintucky and Mizzura (sp intended) are both former slave states which remain unreconstructed to the rights conferred all citizens under the 14th Amendment.

  10. In an important victory for free speech, the panel found that the bar violated the first amendment rights of the attorney.”

    Good job.

    What nation is free that is composed of citizens who cannot criticize the institutions of that nation?

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