Kentucky Bar Association violated lawyer's free-speech rights, federal appeals court rules

jcheves@herald-leader.comJuly 27, 2012 

Henry County lawyer John Berry

The Kentucky Bar Association violated the free-speech rights of lawyer John M. Berry Jr. by threatening him with discipline after he publicly criticized state ethics officials, one of whom was a retired judge, a federal court ruled Friday.

In a lawsuit closely watched by national First Amendment advocates, the 6th Circuit U.S. Court of Appeals in Cincinnati said Berry has the same right enjoyed by all citizens to criticize how the state's Legislative Ethics Commission handles cases involving lawmakers. Professional rules intended to maintain courtroom decorum cannot necessarily be applied to lawyers speaking in public forums as private citizens, the court suggested.

"This warning alone more than subjectively chilled Berry's speech," Judge John Rogers wrote in the decision. "It is evident that the KBA acted unconstitutionally."

Berry, of Henry County, is a former state senator and the brother of writer Wendell Berry. In 2007, he publicly accused the Legislative Ethics Commission in Frankfort of dereliction of duty after it dismissed a complaint against state Senate President David Williams, R-Burkesville, who was accused of improperly asking lobbyists for political donations. The ethics commission concluded that Williams' Senate aides erred innocently.

"It is very unlikely that a legislator would ever come before the commission and confess guilt," John Berry told the ethics commission. "I do not agree with your conclusion and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which you are charged to enforce."

Berry was an observer of the ethics case. He neither filed the complaint against Williams nor represented anyone involved.

However, one of the ethics commissioners — Paul Gudgel, a retired state Court of Appeals chief judge — was offended and filed a complaint against Berry with the KBA, which licenses the state's lawyers and may discipline them with reprimands, fines and disbarment.

A KBA rule forbids lawyers from making "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, adjudicatory officer or public legal officer."

After a 15-month professional conduct investigation of Berry's actions, the KBA Inquiry Commission dismissed Gudgel's complaint, but it sent Berry a warning letter.

The letter told Berry he "did not adequately comply" with the ethics rule on false statements and advised him "in the future to conform your conduct to the requirements of the Rules of Professional Conduct." The KBA told Berry it would keep the warning letter in his file for a year.

Berry sued the KBA, citing the First Amendment. The Kentucky chapter of the American Civil Liberties Union represented him, and other groups, including The Thomas Jefferson Center for the Protection of Free Expression, lent support.

U.S. District Judge Danny Reeves in Frankfort sided last year with the KBA. Reeves said the KBA's speech restriction on lawyers "is not constitutionally overbroad" and "is narrowly tailored to serve a compelling state interest."

On Friday, a three-judge appellate panel reversed Reeves and sent the case back to him for final disposition.

KBA president W. Douglas Myers, a Hopkinsville lawyer, said his agency would not appeal. KBA bar counsel Linda Gosnell, who led the investigation of Berry, left that job in November.

"We're going to accept the decision, and it gives us some guidance to follow as we try to apply the rule in the future," Myers said.

William Sharp, Berry's attorney at the ACLU, said Berry did not seek damages in his suit but sought protection against future discipline related to his speech rights.

"We recognize the importance of the distinction between attorneys' speech rights in court before a judge and the rights of an attorney speaking in public about the performance of government officials," Sharp said. "We maintain the proper standard in this case should be the same standard that is applied to everybody."

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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