Has the KBA Inquiry Commission and Bar Counsel Crossed the Line in Expanding Limits on Attorneys Free Speech Rights?

Has the KBA Inquiry Commission and Bar Counsel Crossed the Line in Expanding Limits on Attorneys Free Speech Rights? 

Editorial by LawReader Senior Editor Stan Billingsley -  Dec. 23, 2009

   SCR 3.130 8.2(4) has been used by the KBA Inquiry Commission to “warn” former State Senator John M. Berry Jr. of New Castle, Ky. that he was in violation of the Rules of Professional Conduct by writing a letter to the Legislative Ethics Committee criticizing their dismissal of a complaint filed by Common Cause against Senate President David Williams. Fn#1.  

Berry and the ACLU have responded with a Federal lawsuit against the Inquiry Commission seeking to declare SCR 3.130 8.2(4) unconstitutional and an infringement of his First Amendment Rights.

(A copy of the Berry letter is found on LawReader.com at: http://news.lawreader.com/?p=2925#

 This letter is an exhibit in the pending Federal lawsuit by Berry and the ACLU against the Inquiry Commission. Berry in a separate  letter to the Inquiry Commission has specifically waived all rights to confidentiality.)

The rule cited by the Inquiry Commission in its “warning” to Sen. Berry states:

“ SCR 3.130(8.2) Judicial and legal officials

 (a) 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, or of a candidate for election or appointment to judicial or legal office.”

In reviewing the documents issued by the Inquiry Commission and the Bar Counsel, filed with the Federal Lawsuit, we have been unable to determine what statements contained in Senator Berry’s letter were “false or with reckless disregard as to its truth or falsity…”.

The Inquiry Commission letter did not point out any specific language in the Berry letter to support or explain their action against Senator Berry. The Warning Letter issued to Berry by the Inquiry Commission, without providing any supporting explanation or supporting facts, stated in their letter to Senator Berry:

 “The Respondent violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.”

    We note in the official Commentary which was adopted by the Ky. Supreme Court to explain SCR 3.130 8.2(4) the following guideline is used to explain the attorney’s rights:

COMMENTARY

Supreme Court 1989:

[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

    The nexus of Senator Berry’s criticism of the Legislative Ethics Commission is that they found (in a closed door hearing) that Senator Williams was not responsible for the actions of people he apparently appointed to set up a meeting at which it is alleged that lobbyists were solicited to make donations to Republican Senatorial campaigns.  

We find no allegation in this Warning Letter that the Berry letter  made a claim of “corruption or unethical conduct” by the Legislative Ethics Commission.  We find no claim in the Berry letter in which he alleged that any officials of the Legislative Ethics Commission lacked the “qualifications or integrity” to serve on the Legislative Ethics Commission.

    The Kentucky Supreme Court has previously interpreted the rights of an attorney to speak out far more liberally than the current interpretation of the Inquiry Commission:

See:  Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980)

   ”We have previously, yet infrequently, had occasion to review charges of professional misconduct by attorneys who by their conduct and comments chip away at public confidence in the integrity of the judicial system. Kentucky State Bar Association v. Lewis, Ky., 282 S.W.2d 321 (1955) the attorneys involved charged in pleadings and in the local newspaper that a change in the assignment of special judges was politically motivated. We recognized that an attorney, just as any citizen, has the right to criticize the courts and their decisions, but charges of corruption or unethical conduct must be made only in good faith supported by substantial competent evidence. The attorney “owes it to himself as an attorney, to his profession, and to the Court to help maintain the dignity and decorum of the Court, and thus maintain the respect of the people for judicial processes.” KSBA v. Lewis, supra, at 324

    This broad interpretation of SCR 3.130 8.2(4) by the Bar Counsel office and the Inquiry Commission, in which they “warn” Senator Berry (for stating that the actions of the Legislative Ethics Commission were “inappropriate”) appears to create new limitations for attorney speech that will prevent any attorney from exercising his traditional constitutional rights and which up to now appear to have been authorized by the Official Commentary and by Court rulings.

DID THE INQUIRY COMMISSION AND BAR COUNSEL IMPROPERLY APPLY SCR

3.130 8.2(4) AS  GROUNDS FOR ACTION  AGAINST SENATOR BERRY?

 

   The Legislative Ethics Commission is created by Chapter 6 of the Kentucky Revised Statutes.

Pursuant to KRS 6.651 - Four of the nine members of the Commission are appointed by the

President of the Senate (i.e. in this instance that would have been Senator David Williams.

Four are appointed by the Speaker of the House (i.e. Speaker Jody Richards in 2007) and the

Ninth member is appointed by the Legislative Research Commission.  The LRC is Co-Chaired by

Senator Williams.

 

 The appointment of the ninth member of the Legislative Ethics Commission is appointed by a vote

of the  twenty members of the Legislative Research Commission.  This provides for ten

Republicans and ten Democrats pursuant to KRS 7.090:

 

” (2) The Legislative Research Commission shall be composed of the President of the Senate, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Speaker Pro Tempore of the House of Representatives, the majority and minority floor leaders of the Senate and the House of Representatives, the majority and minority whips of the Senate, the majority and minority whips of the House, and the majority and minority caucus chairmen of the Senate and House of Representatives….”

 

By any consideration of the method of the selection of the makeup of the Legislative Ethics

Commission it must be concluded that Senator Williams had a significant role in the selection of

the Legislative Ethics Commission which dismissed the complaint against him.

 

THE  PROCEEDINGS  OF THE  LEGISLATIVE  ETHICS COMMISSION ARE DIVIDED

INTO  TWO  DIFFERENT TYPE OF PROCEEDINGS

 

The “Preliminary” phase is where the Commission determines if the complaint is

supported by probable cause.  See: “KRS 6.686 Complaint procedure — Preliminary

investigations…”  This phase is confidential, but confidentiality may be waived by the defendant.

 

The standard of proof required by KRS 6.686 is “probable cause” for a complaint to be

allowed to proceed to the second or adjudicatory phase.  In the Williams complaint, the Legislative

Ethics Commission only conducted a preliminary hearing, and dismissed the complaint against

Senator Williams. This dismissal was the subject of Senator Berry’s letter.  

 

Upon issuing the Warning Letter to Senator Berry, the Inquiry Commission dismissed the complaint

against him, thus denying him any appellate right.  This apparently shields the Inquiry Commission

from review of their action by the Kentucky Supreme Court.  It is possible that the Kentucky

Supreme Court is unaware of the investigation and “warning letter” issued to Senator Berry.

 

The second phase of the proceedings is styled an “Adjudicatory” proceeding and is governed

by “KRS 6.691 Adjudicatory proceedings — Action by commission — Appeal.”

 

” (1) The Kentucky Rules of Civil Procedure and the Kentucky Rules of Evidence shall apply to all commission adjudicatory hearings…

(3) All adjudicatory proceedings of the commission carried out pursuant to the provisions of this section shall be public, unless the members vote to go into executive session in accordance with KRS 61.810.”

 

This statute further separates the Preliminary phase from the Adjudicatory phase by KRS 6.686

Section (5) (b)  which states that if the Legislative Ethics Commission finds that there is

justification for the compliant to proceed, the LEC shall: 

 

“(5)(b) Initiate an adjudicatory proceeding to determine whether there has been a violation.”

 

This suggests that the LEC members do not become adjudicators until they have concluded in the

Preliminary phase that the complaint is adequately supported.

 

The two types of hearings authorized by Chapter Six are distinctly and separately discussed and

different rules of procedure are spelled out by statute for the two different types of hearings.

 

   These two statutes raise an interesting question in light of SCR 3.130 8.2(4) which is the only

Ethical Rule cited by the Inquiry Commission for the finding that Senator Berry acted

unethically.

 

 SCR 3.130 8.2(4)  states:

“ SCR 3.130(8.2) Judicial and legal officials

 (a) 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, or of a candidate for election or appointment to judicial or legal office.”

In the Berry case the Legislative Ethics Commission never conducted an “adjudicatory”  hearing

as described  in KRS 6.691.  They found at the Preliminary hearing that there was no probable

cause to support adjudication of a claim that Williams had violated the lobbying rule. The complaint

was therefore dismissed and never proceeded to the Adjudicatory phase.

 

The citation against Senator Berry, by the Bar Counsel, arose out of his criticism of the actions of

the LEC  taken in the Preliminary or investigative phase of the proceedings as identified in KRS

6.686.  

 

The ethical rule (SCR 3.130 8.2(4)) describes the protected class as “judge, adjudicatory

officer, or legal officer”.  This ethical rule would appear to only apply to Senator Berry if he made

inappropriate comments about an “adjudicatory officer“.

 

This raises a significant legal question.  Does the ethical rule which the Inquiry Commission claims

Senator Berry violated, protect “investigators”, or does it just apply to “adjudicators”?

 

 

Under the two statutes setting up proceedings under the Legislative Ethics Code found in KRS

Chapter Six. It can be argued that the Legislative Ethics Commission never acted in this

matter as adjudicators and therefore are not protected by SCR 3.130 (8.2(4).

 

By any definition, the Legislative Ethics Commission cannot be defined as Judges.  We don’t see

how they can be can defined as “public legal officers” and Chapter Six does not provide guidance

by defining the term “public legal officers”.

 

 It can be argued from Chapter Six, that the members of the Legislative Ethics Commission are only

entitled the protection by SCR 3.130 8.2(4) when they act as “adjudicators“, and since no

adjudicatory hearing was ever held, a strong argument is presented that SCR 3.130 8.2(4) never

applied to the actions of the Legislative Ethics Commission who only conducted an investigative

or “preliminary” phase proceeding.

 

If SCR 3.130 8.2(4) only applies to adjudicatory functions of the LEC, than it is difficult to see how

Berry’s letter  could have maligned an adjudicator since the complaint against Sen. Williams never

proceeded to the adjudicatory phase.

LET US EXAMINE SOME SCENARIOS THAT DEMONSTRATE CONDUCT THAT MAY BE LIMITED UNDER THE INQUIRY COMMISSION’S BROAD EXPANSION OF SCR 3.130 8.2(4):

On Dec. 21st.. The Kentucky Enquirer interviewed Kenton Commonwealth Attorney Rob Sanders, and quoted Sanders comments about attorney Eric Deters who had filed two civil suits against Sanders. Both suits are currently pending.  Sanders is quoted in the Kentucky Enquirer referring to Deters:

“I guess a law license can be a dangerous thing in the hands of a crazy person.” 

As Commonwealth Attorney, Sanders is in the class protected by SCR 3.130 8.2(4.)  Does this mean that attorney Eric Deters cannot respond in kind? 

   This week Fayette County Commonwealth Attorney Ray Larson on his official web site published the following comments about UK Law School Professor Robert Lawson:

“Straight Talk from Ray the D.A. – A Prosecutor’s Blog

When It Comes To Our High-Crime Neighborhoods, The “Let Them Eat Cake” Crowd Is Alive And Well

 

There are limits to what our government will do, or even should do, to protect you from crime. That’s what anti-incarceration activist  Robert G. Lawson thinks. Here’s exactly what he said:

“A reduction in the prison population . . . would begin to sound a necessary warning that there are limits beyond which the state should not and will not go in its efforts to protect the public against the commission of a crime.”
Professor Robert G. Lawson, University of Kentucky College of Law

Just whose safety does Lawson think is not worth protecting? It doesn’t take much to figure that out. It is our fellow citizens who live in high crime neighborhoods that “the state should not and will not protect from crime.” So, to those who live in high-crime neighborhoods, Lawson’s attitude, from the safety of academia, is clear - “It’s not my problem – you deal with it!”

Lawson and his anti-incarceration accomplices remind me of Marie Antoinette’s legendary and condescending statement about the suffering and starving peasants in France. “Let Them Eat Cake,” she reportedly said.  She was really not concerned about the plight of the less fortunate French peasants who were starving to death while she lived in the lap of safety and luxury.

The same can be said about anti-incarceration advocate Robert G. Lawson and his accomplices in the legislature, academia and on editorial boards about crime in Kentucky. Crime and its impact is not a real big problem for them. Most of them live in relatively well-to-do, upper middle income, and mostly white neighborhoods. Crime doesn’t affect them much, because crime doesn’t happen much in their neighborhoods. They don’t face the constant concern for their safety or the safety of  their kids and grandchildren. Fear of crime really doesn’t appear on their radar screen. In their world, like Marie Antoinette’s, everything is just fine.

Not so for our high-crime neighborhoods. In these neighborhoods, everything is not just fine. Unfortunately, those neighborhoods are too often lower socio-economic and  predominately minority. The residents of these neighborhoods are afraid of crime and criminals. Their lives are affected by crime, and they expect our police and prosecutors, Judges, and jails and prisons to do everything possible to protect them from criminals.

So, in Lawson’s world, if you live in a high-crime neighborhood, you may be out of luck. Be advised you residents of high-crime neighborhoods, if Professor Lawson has his way, there are limits on what will be done or even what should be done to protect you from crimes and criminals.

The message from Lawson and his anti-incarceration gang is pretty clear:  “Not my problem. You deal with it. And, by the way, HAVE SOME CAKE!” “

    We believe that Larson is entitled under the First Amendment to express his comments about Professor Lawson.   That’s his opinion and while we disagree with the reasoning of his comments, (our stronger language is censored and chilled by the broad Inquiry Commission ruling) he has to right to express them.

But here is the problem. Under the language of the SCR 3.130 8.2(4) Ray Larson is a “public legal officer”.    Therefore, if Professor Lawson (who is an attorney subject to the Code of Professional Conduct) wishes to fire back at “Public Legal Officer” Larson, and defend himself, he is apparently subject to an ethics sanction under the current broad ruling of the Inquiry Commission.   

If Professor Lawson were to opine that it is inappropriate for Larson (who is subject to a “Minister of Justice” duty as a prosecutor) to express his political views on a web site. Or if Professor Lawson were to question if said web site posting… (Further comments are self-censored due to the chilling effect of the Inquiry Commission and Bar Counsel’s broad interpretation of SCR 3.130 8.2(4). )

SCR 3.130 8.2(4) identifies the class of protected officials and candidates as including:

 ”a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”  (The official Commentary to this SCR includes prosecutors and public defenders in the protected class).

Does the broad ruling of the Inquiry Commission mean that any mere attorney (or professor) can be criticized by a member of the protected class, but cannot respond in kind?  (Further comments are self-censored due to the chilling effect of the Inquiry Commission interpretation of SCR 3.130 8.2(4).)

Does the broad ruling of the Inquiry Commission mean that an attorney can never publically state (or even privately state) that a candidate for the office of Judge, Prosecutor, or an Ethics Commission member is not qualified for the office, or state that their actions are “inappropriate”? 

Does this ruling mean that a licensed attorney can never challenge a ruling of a judge?   If an attorney states that a judge’s ruling is “unsupported by the law” and that he/she “plans to appeal that ruling”, is this a violation of SCR 3.130 8.2(4)?

We opine that the original purpose behind the adoption of SCR 3.130 8.2(4) was to protect sitting judges from harassment by disgruntled attorneys who were currently appearing before he court in a pending case

 We note that the Legislative Ethics Commission is a Legislative  Branch  agency and quite distinct from a Court of Law.  A Judge is limited in his ability to defend himself in public comments by the Code of Judicial Conduct.  However there is no code of conduct which prohibits a member of the Legislative Ethics Commission to publically fire back at Senator Berry if they choose to do so.  LEC members are not restrained by the Code of Judicial Conduct.

We also note that Senator Berry attended the Legislative Ethics Commission meeting (until he was excluded along with nationally known author Wendall Berry, and the media) as a member of the public.  He did not represent any party to the Legislative Ethics Complaint proceedings.  He appeared as a private concerned citizen. He simply is not in the same class as a disgruntled litigate and his letter was written after the conclusion of the Legislative Ethics Commission proceedings, not during the proceedings and it is difficult to understand how his letter could have affected the ruling of the Legislative Ethics Commission.  

The United States Supreme Court has previously limited a Bar Associations control of speech by an attorney to comments which may improperly influence a pending trial.

See: Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991)

The “substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials. Lawyers in such cases are key participants in the criminal justice system, and the State may demand some adherence to that system’s precepts in regulating their speech and conduct. Their extrajudicial statements pose a threat to a pending proceeding’s fairness, since they have special access to information through discovery and client communication, and since their statements are likely to be received as especially authoritative. The standard is designed to protect the integrity and fairness of a State’s judicial system and imposes only narrow and necessary limitations on lawyers’ speech. Those limitations are aimed at comments that are likely to influence a trial’s outcome or prejudice the jury venire, even if an untainted panel is ultimately found. Few interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and the State has a substantial interest in preventing officers of the court from imposing costs on the judicial system and litigants arising from measures, such as a change of venue, to ensure a fair trial. The restraint on speech is narrowly tailored to achieve these objectives, since it applies only to speech that is substantially likely to have a materially prejudicial effect, is neutral to points of view, and merely postpones the lawyer’s comments until after the trial. Pp. 1075-1076. (emphasis added by author)

   The Notice of Investigation issued by the Bar Counsel’s office appears to have kept Berry silent for l7 months from the date of the Notice of Investigation by the Deputy Bar Counsel informing him he was under investigation, to the formal finding of the Inquiry Commission which concluded that:

 “The Respondent (Berry) violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately”.

During that l7 months the immediacy of the public issue cooled and faded from the media. (Further comments are self-censored due to the chilling effect of the Inquiry Commission and Bar Counsel’s broad interpretation of SCR 3.130 8.2(4). )

The Federal lawsuit seeks damages and attorney fees.  It is presumed that any award issued by the Federal Court will be paid out of the dues that all attorneys are required by law to pay to the KBA.   Is this a wise use of our dues? 

   The Bar Counsel and the Inquiry Commission actions are generally subject to review by the Kentucky Supreme Court. Administratively the Bar Counsel and the Inquiry Commission are agencies of the Judiciary and controlled by the Supreme Court. Fn#1.  

 We ask rhetorically, why doesn’t the Kentucky Supreme Court or the KBA Board of Governors step into this matter, dismiss the finding of the Inquiry Commission, remove the warning letter from Senator Berry’s KBA file, spell out a new interpretation of SCR 3.130 8.2(4) which limits this rule to the original intended purpose (and which doesn’t chill the free speech of attorneys), issue a public apology to Senator Berry, and seek dismissal of the Federal lawsuit. 

We again point to the Supreme Court’s ruling in Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980) in which the court stated:

“an attorney, just as any citizen, has the right to criticize the courts and their decisions, but charges of corruption or unethical conduct must be made only in good faith supported by substantial competent evidence.”

In the alternative, we would suggest that the Inquiry Commission and the Bar Counsel justify their finding against Senator Berry, by publically and specifically issuing Findings of Fact pointing out the “charges of corruption or unethical conduct”  that the Heleringer decision requires before a sanction could be imposed on Berry by the Inquiry Commission.

After reading the documents filed in the Federal lawsuit we find no statement by the Inquiry Commission or the Bar Counsel, which specifically identifies the  “false claims” Senator Berry was found to have made?  The Inquiry Commission in their warning letter to Senator Berry did not point out or identify which statements in his letter were falsehoods. 

This expanded  application of SCR 3.130 8.2(4) by the Bar Counsel and Inquiry Commission sets a  precedent which if allowed to  stand, will limit the free speech of those citizens who are usually the best informed about judicial proceedings and questions of law (i.e. lawyers).  All lawyers will be excluded from public discussion and debate about judicial proceedings. This appears to ignore  the Ky. Supreme Courts policy as stated in Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980) which holds that lawyers are allowed the “right to criticize the courts and their decisions.”

(Further comments on this topic are self-censored due to the chilling effect of the Inquiry Commission and Bar Counsel’s broad interpretation of SCR 3.130 8.2(4). )

***

Footnote #1      KBA Website comment:

The Kentucky Bar Association, acting as an agency of the Supreme Court, is responsible for investigating complaints against lawyers practicing in this Commonwealth and for prosecuting charges of professional misconduct issued by the Inquiry Commission.  The Inquiry Commission is an independent body appointed by the Court to receive and process complaints from any source which allege professional misconduct by lawyers.  The Office of Bar Counsel provides administrative support to the Inquiry Commission, investigates complaints and prosecutes charges.   

Authors note:  This editorial was submitted to the Ethics Hotline on Monday Dec. 21st. for their opinion as to whether or not this editorial violated the Rules of Professional Conduct.  On Wednesday Dec. 23rd. the Ethics Hotline advised the author that this editorial did not violate the Rules of Professional Conduct.

This published draft has added some spelling corrections, one hypothetical anecdote, and a web address for the letter Senator Berry wrote and which resulted in the “warning” letter sent to him by the Inquiry Commission. These are the only changes made from the version sent to the Hotline for review.

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