Probable Cause

He accused Mr. Berry of “[i]ntentionally impu[g]ning the reputation of the commision members without justification to advance his own agenda.” Lawyers in Kentucky are more limited in their freedom to condemn than the rest of us are by a state Supreme Court rule that reads in part, a “lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer.”

If Mr. Berry had been found guilty of violating this standard, the KBA could have revoked or suspended his license to practice.

As it happened, the KBA did not. Instead, after a 15-month deliberation, the bar association decided to dismiss Judge Gudgel’s complaint—but with a warning letter to Mr. Berry. The letter said Mr. Berry “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’s position is that this warning letter is not in fact a disciplinary action and hence cannot be appealed to the association. But because a KBA official said in deposition that the statements made in the letter could, if repeated, result in a future disciplinary action, Mr. Berry felt this implied threat was chilling to his right of free speech.  And so he filed a federal lawsuit on this claim in November 2009.

U.S. District Judge Danny Reeves issued his opinion on April 12, 2011. While agreeing with Mr. Berry that the threat of further disciplinary action by the bar association was credible, the judge ruled that he had no standing in federal court to subvert what he deemed the equivalent of a state court decision. He also said he was not in the position to decide the truth or falsity of Mr. Berry’s disputed statements, and even if he reheard all the evidence, it was in any case out of his jurisdiction. Hence the KBA retained its power to discipline Mr. Berry as it saw fit.

While the KBA’s warning letter does not specify what statements violated the ethics rule, comments KBA officials have made in a brief and to the press indicate two problems.  The first is: Did the Legislative Ethics Commission act appropriately in closing its deliberations to everyone except the accused senator? I’ll have to send you to the briefs for the arguments, but in essence, while the statute the ethics commission is following–KRS 6.686(2)–allows for confidential hearings, and gives the person accused the right to appear, answer the complaint and have an attorney present, that statute does not specify (as Mr. Berry and his lawyers point out) that the accused must be allowed to be present during the entire proceeding or crossexamine other witnesses, as seems to have been the case here.

KBA officials and Judge Gudgel also seem to feel Mr. Berry tarred the reputations of the commissioners by saying he had heard cynical interpretations of the commission’s finding (though he said he did not agree with those interpretations). Since Mr. Berry did not make accusations of a “stacked deck” himself, the question then becomes, is it improper language to report what you have heard others speculate? Does repeating an accusation mean one is making it, even if you say you aren’t?

Mr. Berry does have his partisans. Stan Billingsley—a retired district judge in Kentucky and a former member of the Judicial Conduct Commission, which hears complaints about judges—wrote on the blog that the “position of the KBA Bar Counsel and Inquiry Commission that they can sanction an attorney for writing a letter questioning the legal reasoning in a case after it has been finalized is in our opinion an unconstitutional violation of a lawyer[']s First Amendment rights.”

He added that Judge Reeves’ decision means that “the Kentucky Supreme Court has written a rule that allows a sanction to be brought against an attorney in a situation where he is never confronted by his accuser, never given a hearing at which he can appear, and is denied the one appeal he is guaranteed by Section 115 of the Kentucky Constitution.”

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