Free-speech suit grows from lawyer's criticism of state ethics commission

A First Amendment lawsuit to be decided soon in U.S. District Court in Frankfort might establish whether a respected lawyer broke an ethics rule — risking his law license — by criticizing the state's Legislative Ethics Commission.

"This is a very important case because free speech is, I think, going out of style. The practice now is for someone in authority to say, 'We didn't like what you said, and we're gonna get you for it,'" said Stan Billingsley of Carrollton, a retired state trial judge who has written about the case extensively on his legal blog and in a new book.

Nobody disputes John M. Berry Jr. was entitled to disagree in 2007 when the ethics commission dismissed a complaint against Kentucky Senate President David Williams involving campaign money solicited from Frankfort lobbyists.

The commission ruled Williams' Senate aides innocently erred by asking lobbyists for up to $50,000 each at a fund-raising luncheon for Senate Republicans. State law forbids lobbyists from giving to state legislative campaigns.

However, Berry — a Henry County lawyer, former state senator and brother of writer Wendell Berry — didn't nurse his disappointment privately. In a letter he sent to ethics commissioners, he said they failed in their duty. Then he went to their next meeting and shared his letter with reporters.

"It is very unlikely that a legislator would ever come before the commission and confess guilt," Berry wrote in his letter. "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's criticism didn't get much publicity that day. But it angered some on the nine-member ethics commission — appointed by the Senate president and House speaker — who thought their integrity had been questioned.

One ethics commissioner, Paul Gudgel, a retired state Court of Appeals chief judge, responded by filing a complaint against Berry two days later with the Kentucky Bar Association. The KBA licenses the state's lawyers and can discipline them with reprimands, fines and disbarment.

"Intentionally impugning the reputation of the commission members without justification to advance his own agenda was improper," Gudgel wrote in a handwritten note to KBA chief bar counsel Linda Gosnell.

Gudgel did not respond to a request for comment last week. The ethics commission's executive director, Anthony Wilhoit, said Gudgel was in Florida and could not be reached easily.

In a deposition in July, Gudgel acknowledged news coverage of Williams' ethics case was a sore point to him. Berry made it worse by "grandstanding," Gudgel said.

"As a matter of fact, I have coffee on a regular basis with a number of lawyers and others involved in the judicial process," Gudgel said in his deposition. "There was a great deal of talk from them to me about articles in the paper over this case — that it was another cover-up — 'You went in the tank again' — that kind of stuff."

In response to Gudgel's concerns, the KBA launched a 15-month professional conduct investigation of Berry. It kept Gudgel apprised of its progress, even sending him Berry's response letters, according to court records.

(Through a KBA spokeswoman, chief bar counsel Gosnell said Friday it is standard operating procedure to keep complainants informed during investigations. Gosnell did not directly respond to calls seeking comment on the case.)

The KBA focused its attention on an ethics rule that states: "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, adjudicatory officer or public legal officer."

Gudgel said Berry made a recklessly false statement in his letter. Berry complained the ethics commission met privately with Williams to hear the case, ordering the public and the watchdog group that filed the complaint, Common Cause of Kentucky, to leave the room.

The closed-door hearing "gave cause for some to speculate that the deck was stacked and the senator would be exonerated," Berry wrote. He immediately added, "I was not, and am not, willing to go that far."

Had Berry read the legislative ethics law before writing his letter, he would have known that it lets the commission hold private hearings with lawmakers accused of wrongdoing, Gudgel said. Therefore, nothing improper was done, and Berry's criticism was recklessly false, Gudgel said.

"Those representations, in my opinion, were both inaccurate and untrue, and misrepresented what actually was going on, which was merely a closed preliminary inquiry consistent with the statute," Gudgel said in his deposition.

In March 2009, the KBA Inquiry Commission chose to dismiss 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.

Reed Moore Jr., who at the time was chairman of the KBA Inquiry Commission, said in a deposition in July that Berry acted with "reckless disregard" to the truth.

"You know, all of us are disappointed with the political process sometimes, but you can't go out there and call them liars and thieves or crooked, not when you've got this (ethics) rule," Moore said.

Berry responded by suing the KBA, citing his free speech rights under the First Amendment. He asked the Kentucky chapter of the American Civil Liberties Union to represent him.

"The bottom line on our position is that the contents of Mr. Berry's letter are protected speech, and to the extent that they want to restrict his comments, the KBA's warning is chilling," said ACLU staff attorney William Sharp. "Attorneys should be able, just like the rest of society, to provide insightful criticisms into governmental operations. If they cannot, all of us lose."

Berry referred requests for comment last week to his attorney, citing the ongoing litigation.

Both sides have filed motions for summary judgment and say they expect a ruling soon from U.S. District Judge Danny Reeves.

The KBA is taking an ethics rule meant to maintain courtroom decorum and using it to silence political criticism at the Capitol, said Billingsley, the retired judge and legal blogger. Berry wasn't acting as a lawyer before the ethics commission, and Gudgel wasn't acting as a judge over him, Billingsley said.

"That rule was intended to restrict speech by lawyers during a pending case if that could affect the outcome of the case," said Billingsley, a former member of the Judicial Conduct Commission, which hears complaints against state judges.

Aggravated but inspired by Berry's tale, Billingsley has just published a novel, Alice vs. Wonderland: A Chilling Tale of the Abuse of Power in the Name of Lawyer's Ethics, that is a barely veiled fictional account.

The book assigns pseudonyms, so Berry is "former state Sen. Jack Kenton," targeted by the corrupt and not entirely competent "Ministry of Ethics," a stand-in for the KBA Office of Bar Counsel. The book drips sarcasm. By page 31, Billingsley introduces the word fascist in relation to "Chief Justice Madison Hatter" of the Kentucky Supreme Court.

To make sure that all the right people see his book, Billingsley said he mailed copies to scores of officials, including the Supreme Court and KBA Board of Governors. He said he hasn't given much thought to the fate of his own law license.

"If they could come after John Berry, they could come after me," he said. "I wouldn't say I worry about it a great deal, but I'm not so stupid as to pretend there isn't the possibility."

This story was originally published March 21, 2011 at 12:00 AM with the headline "Free-speech suit grows from lawyer's criticism of state ethics commission."