The following web comments are posted on the aba
journal concerning the kba’s investigation of john m. Berry jr. who wrote a
letter to the legislative ethics commission explaining that they did not apply
the doctrine of respondent superior.

A member of the legislative ethics commission called
linda gosnell the kba bar counsel (now fired) and she investigatged berry for
two years on a claim that he had recklessly told the truth.

The investigation never made it to the inquiry
commission or the board of governors, but gosnell placed a letter in berry’s
kba personnell file warning him to restrain his speech for one year.

he has sued the kba and the case is before the 6th.
circuit court of appeals.  the bar
counsel hired stites and harbison as outside counsel to defend the bar.  the bar counsel’s office has nine lawyers,
but apparently none are qualified to appear in federal court(???)

it is interesting to see the first amendment comments
of lawyers around the country.

First Amendment

Kentucky Bar Can Restrict Attorney Speech

By Stephanie Francis Ward

12, 2011, 09:48 am CST


District Court Judge Danny Reeves found that the rule in question is
constitutional . . . even if it does restrict constitutionally protected

you link to the opinion. I’d like to see how Danny does that (or if he does).

Pushkin on 2011 04 12, 1:18 pm CST

easy, Pushkin. You simply start with where you want to end up and manufacture a
ridiculous rationale that’s facially contradictory.

the opinion claims to preserve respect for the judiciary, while it does nothing
of the sort. This raising of the battlements around the judiciary merely
reinforces the opinion of the public that the government does whatever it
wants, irrespective of the law, and the courts will say whatever is necessary
to allow the government to operate without criticism or challenge.

is a scary place.

Terrified on 2011 04 12, 1:47 pm CST

▬ ?

“His (Reeves) ruling also found that the federal courts have no jurisdiction to
overturn state bar association disciplinary actions.”

? ▬ ? REALLY ?

Disciplinary Counsel v. Zauderer, 10 Ohio St.3d 44 (1984)


Supreme Court of Ohio. Decided April 4, 1984.

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 US 626
- Supreme Court 1985

471 U.S. 626 (1985)


No. 83-2166.


Supreme Court of United States. ▬ Argued January 7, 1985 ▬ Decided May 28, 1985


B. Morrison argued the cause for appellant. With him on the briefs were David
C. Vladeck and David K. Frank.

Bartow Farr III argued the cause for appellee. On the brief were Angelo J.
Gagliardo and Mark H. Aultman.[*]

3. Jim-OH 2011-04-12 19:34 -0400 [ ? ] on 2011 04 13, 5:35 pm CST

bring facts to the discussion, Jim.

J. on 2011 04 13, 6:41 pm CST

Obviously, there’s a “compelling state interest” in keeping the public in the
dark. In Kentucky, public dicslosure of the facts might even be a “clear and
present danger” to the judiciary. [/snark]

No banning of Billingsly’s book, however, so it’s only attorneys who are
muzzled. Only KY attorneys, in fact … so an OH attorney could have sent the
very same letter to the very same people, without consequences. I can see why
J.M. Berry, Esq. is peeved.

Ham Solo on 2011 04 15, 5:55 am CST

is very strict on attorney speech unless you’re making cheesy (and sometimes
racist) advertisements where the lawyer shrinks dinosaurs or towers over
Japanese tourists like Godzilla. And no, I am not kidding about either ad.
Basically, you criticize any judge or organization, and they come down on you
like the hammer of Thor.

could tell you why, but then they’d have to kill me. In fact, I’ve said too
much already…

Kentucky Bob on 2011 04 15, 6:13 am CST

ethics in Kentucky” is an oxymoron these days. If you complain, it’s almost
certain that they will do nothing, and then they will punish you.

Read it and weep: http://news.lawreader.com/?p=3505

Schmethics on 2011 04 15, 6:48 am CST

who actually reads the letter would be hard pressed to find any basis for an
ethical violation. Bogus ethics complaint, followed by a Federal judge’s bogus
decision. Madison must be rolling in his grave.

Publius on 2011 04 15, 6:56 am CST

true, #2.

thinking too logically, #3.

miss you, Kentucky Bob.

Michigan Matt on 2011 04 15, 7:04 am CST

know I’m being a broken record, but the First Amendment only applies to laws by
Congress. It would be nice if sometime this century, a judge actually read it.

DirkJohanson on 2011 04 15, 7:22 am CST

Well kiddies!!! Think you got rights? Think again! Your State Supreme Court’s
and ODC”S hold your goodies in thier hot little hands and if you say you
don’t like it they-SQUEEZE!!!! We learned that here in De. a long time ago!

largeweasel on 2011 04 15, 8:28 am CST

DJ – Of course what you say is literally true; but most people thinking about
the First Amendment when discussing state and local laws and rules mean the
First Amendment as applied by way of the Fourteenth’s Due Process Clause and
the incorporation doctrine, right?

Daniel on 2011 04 15, 8:54 am CST

Yes, that’s what they mean. And the actual text of the Fourteenth doesn’t help
the argument, either.

DirkJohanson on 2011 04 15, 8:56 am CST

I agree with those that there is nothing remotely inflamatory in this letter.
It just disaggrees with the legislative commission’s verdict.

2) How does the letter affect public confidence in the judiciary (their
proposed rationale for the discipline.) It criticizes a LEGISLATIVE
commission’s decision; not a judge’s.

Unless there’s more to this case than just this letter (and yes, ABA, it would
be nice if you posted the decision that is the subject of the article), then
this is just crap. Berry and the ACLU, don’t give up now. Take this to the
appellate and supreme court if necessary.

THIS IS BULLHOCKEY on 2011 04 15, 8:58 am CST

Maybe it is the First Amendment of the state’s constitution.

fnlawyer on 2011 04 15, 9:16 am CST

actual decision can be found here:


This is bullhockey on 2011 04 15, 9:19 am CST

stupid decision…very disingenous of the federal judge…now try to censor this.

Say What on 2011 04 15, 9:31 am CST

read the Constitution – cover to cover- and I could not find any mention of the
Kentucky Bar Association.

VERITAS on 2011 04 15, 12:43 pm CST

vice versa.

Ham Solo on 2011 04 15, 1:03 pm CST

believe NJ takes a similar position regarding controlling attorney speech and
having the sole right and ability to discipline attorneys for “ethics
violations.” Not only have people lost faith in the government and the court
system, they have lost faith in the attorneys. So, colleagues, having taken an
oath to defend the Federal Constitution and the constitution(s) of the state(s)
to which we are admitted, what do we do?

Jac on 2011 04 15, 1:05 pm CST

15 There is no First Amendment to the Kentucky constitution

DirkJohanson on 2011 04 15, 2:42 pm CST

think most of the people on state Ethics Committees try to do the right thing…
that’s why they put up with the job. I also think that when in doubt (as we all
are from time to time), they have a tendency to take the middle road: bad
characters get off with a slap on the wrist, at least the first time around,
and honest actors like Berry sometimes get the same slap on the wrist. A bit
messy, but it works out in the long run.

federal courts can’t review a state court decision on a state law question,
which was, “Did Berry violate Rule 8(a)?” No shocker there. Berry’s challenge
to the rule itself is actually pretty narrow: the Constitution protects
(almost) all true statements, whereas Rule 8(a) prohibits reckless statements,
even if they are true. The court held that Kentucky does have a compelling
interest in preventing reckless speech, by attorneys, about judges.

might debate whether or not Berry’s speech was reckless – he based it on
alleged “evidence” of which he had no knowledge, because it was presented at a
hearing from which he was excluded. And there’s that subtle distinction whereby
the state court, not the federal court, is the final arbiter of that
federal-ish question.

top to bottom, the Berry case does stink to high heaven of personal power and
influence run amok, in a system that seems deliberately designed to enable it.
(Read that link in #7.) The First Amendment case doesn’t begin to address that

Ham Solo on 2011 04 15, 2:59 pm CST

- haven’t seen the opinion yet, but might they be thinking that “congress” may
make no such law, but the head of another branch, like the judiciary, may do
just that….?

JJ on 2011 04 15, 3:02 pm CST

the opinion may or may not shed light on this, but do they have a different
level or scope of “restriction” as they will apply it to speech er I mean
“constitutionally protected speech?”

JJ on 2011 04 15, 3:07 pm CST

there ANYONE out there who is actually eduated in the law and First Amendment
rights who believes this opinion has any legal, moral or rational basis? This
is only the most recent decision in a trend of cases in which the judicial
branch of government has declared its immunity from FirstAmendment citizen
protections. Maybe someone can point me to the language in the First Amendment
excepting the judicial branch or any branch of government from criticism or
excepting those who enter the legal “profession” from its protections. Frankly,
the Judges on this Court should be impeached and removed from the bench for
openly engaging in a conspiray to violate the Constitutional rights of this
citizen. Then they should be indicted and imprisoned for official miscoduct. I
am very serious. This has gone TOO FAR.

Citizen 1 on 2011 04 15, 6:00 pm CST

25. That’s easy.

the pertinent part of the First Amendment: “Congress shall make no law …
abridging the freedom of speech, or of the press;”

case doesn’t involve a law by Congress. As recently as 1926, the Supreme Court
was true to that requirement, and then surreptitiously decided that the words
“Congress shall make no law” didn’t actually exist.

case doesn’t abridge the freedom or speech, or of the press. Letters aren’t
speech. Speech is talking, or something on the order of sign language. The
letters in this case aren’t the press.

As you know, courts have decided that speech is every form of expression, even
naked chicks on a stage, but if those courts were right, than the First
Amendment would say, “abridging the freedom of speech, INCLUDING the press.”

course, this decision doesn’t say that. Instead, this decision (I assume, I
haven’t read it, but there are thousands like this) relies upon the variety of
judicially legislated, made-up exceptions to the overly-broad rules courts have
created about the scope of the First Amendment. As such, it has nothing to do
with the First Amendment – it just has to do with a lot of people call the
“First Amendment” but are actually made up gobbledeegook by judges.

DirkJohanson on 2011 04 15, 6:34 pm CST

14th Amendment extends our rights under the US Constitution to the states. So,
Kentucky is bound by the 1st Amendment.

Greg on 2011 04 16, 1:32 pm CST

Greg, that’s what courts hold, but in fact the 14th extends the First Amendment
thanks only to judicial legislating, not because of what’s actually in the

DirkJohanson on 2011 04 16, 3:17 pm CST

I’m guessing Dirk thinks we should all be driving around in horse buggies and
not allowing public education because they didn’t have that in 1789. Or better
yet, the Constitution is a sham altogether because the Constitutional
Convention that drafted it exceeded its authority when it met and so we should
still be operating under the Articles of Confederation, right Dirk? Or that the
14th Amendment isn’t valid because we forced the south to ratify it as a
condition for reunification? Blah, blah, blah.

position is the same old tired literalism of Clarence Thomas.

founding fathers wanted a living, breathing document, and they wanted it to
evolve. Otherwise, they would have written the Constitution to be 4,672 pages
long, and even then it would not have covered all the eventualities.

OK, Dirk, if you want to be a literalist, the 14th amendment says…

“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.”

We can argue ‘til the cows come home about what the privileges or immunities of
citizens of the United States are, but a great case can be made that they’re
the Bill of Rights. Arguably, the only judicial activism present was that of
the Slaughterhouse decision, which re-wrote the 14th Amendment to not extend
ALL federal limitations to the states. And the court did that because they were
ticked off with the lawyer for slaughterhouses, a former U.S. Supreme Court
justice who left the court to join the revolution. So if there’s any activism
going on here, it’s too little federalism in contravention of the 14th

14th Amendment means states lost some rights. We fought a civil war over this.
Game over. Join the 21st century, Dirk.

Oh get real on 2011 04 17, 3:09 pm CST

29. A “living constitution” means things such as including “press” protection
for television broadcasts, this article, and internet postings such as this
article and our comments, even though when the First Amendment was ratified,
the “press” truly involved a printing press. A “living constitution” also means
there is an amendment process. It doesn’t mean that 7 or 9 individuals, many of
whom are political cronies (on the current court, Roberts, Alito, Kagan, and
Thomas easily fit into that category) get to render decisions altering the
plain language of the constitution in order to overrule the decision of the
United States Congress, 50 state legislatures, and the elected officials of
every other political subdivision in America. We’re a nation of laws.

privileges and immunities clause makes a lousy argument for extending the Bill
of Rights. A “privilege” is obviously not a “right,” nor is an “immunity” a
“right” as the rights under the Bill of Rights are described; would you call
the right to trial by jury an “immunity?” For what its worth, the first
incorporation doctrine case wasn’t for almost 30 years, and wasn’t a Bill of
Rights issue, more than a half-century after the Fourteenth was ratified,
SCOTUS still held the First didn’t apply to the states.

you criticize Thomas, when in fact he is credit with reviving it in MacDonald
last year. It was unnecessary for him to use the Fourteenth, however, in order
to extend the Second to a city code because the Second Amendment is plainly not
limited to laws by Congress the way the First is.

assume you like it when a small number of people make up their own
constitution, because so far you view it is going your way. Wait until the
judges you don’t like start making up their own constitution to rule against
what you’d want them to. I also find people like you incredibly myopic, usually
failing to consider the many laws by Congress that truly abridge freedom of
speech that have been upheld by judges writing their own constitution. Your
21st century view of the constitution is actually having no constitution at

DirkJohanson on 2011 04 17, 4:11 pm CST

19th century view is like having no constitution at all, when the states can
take away the rights this country was founded on.

Greg Ohio on 2011 04 19, 10:22 am CST

the states can take away the rights this country was founded on. ” This is
starting to sound like that N. Dakota pol, defending his constituents’ right to
drive drunk.

flash: When there’s a compelling state interest, they can. So can Congress.
This has always been the case. Read the decision: The only issue here was where
to strike the balance between Berry’s right to reckless speech, and the state’s
interest in preventing it when it’s directed at the judiciary by a member of
the bar.

a narrow decision, not the end of life as we know it. If Kentucky had barred
Berry from saying anything at all about the commission, the ruling would have
gone in his favor. As it is, he can still say anything he wants, so long as
it’s not reckless.

Ham Solo on 2011 04 19, 12:59 pm CST

Dirk – Kentucky’s Constitution might not have a First Amendment, but Section
one of the main body of our constitution provides that the freedom to publicly
express ones thoughts and opinions is an inherent and inalienable right -
inalienable even by act of a bar association!!

Ryan on 2011 04 19, 1:37 pm CST

do not know enough about the Rooker-Feldman doctrine to know if this judge’s
decision was correct. I make no comment on whether it was or was not.

to call this Berry’s letter “reckless” is absurd. It is nothing more than a
polite insistence that the legislative ethics commission failed to do its job.
Not only is it political speech, but responsible political speech.

state bar dinged him under the weak, weak stretch that the lawyer made
misleading statements by remarking that the ethics commission conducted its
hearing in secret (which it did). They extrapolated that, because the rules let
the ethics commission conduct its hearings in secret, the lawyer was misleading
people into thinking that the commission was doing something wrong by so
conducting the hearing in secret. Give me a break. Even if the lawyer was
intimating closing the hearing was wrong, there’s a difference between legal
and wrong and right, and it’s a legitimate point that even if it was legal,
many people think it wasn’t right to conduct such a hearing in secret.

I would note, the legislative ethics commission is not the judiciary, so the
bar’s interest in this letter just gets weaker all the time, given that the
bar’s ostensible purpose was preserving respect for the judiciary.]

letter was in no way reckless, and for Ham Solo to compare someone calling free
speech a right the country was founded on, to some moron’s defense of drunk
driving, is …. well, reckless. This is free speech, Ham, not some defense of
drunk driving. When you can’t criticize a government action without
repercussion (lawyer or common citizen), it is a big deal.

Oh get real on 2011 04 19, 1:51 pm CST

wrote that the exoneration was “contrary to the undisputed evidence that was presented.”

if he’d been at the hearing, he’d have had grounds for this statement – like,
say, knowing what the evidence was, and knowing whether or not it was disputed.
Problem is, he wasn’t there (a fact that he admits, and complains about.)

I read it, it is the opinion of the court that accusing a judge of ignoring
“evidence” that you don’t actually know was (or was not) presented or disputed,
is reckless, if you’re an attorney subject to the ethics rules of the Kentucky
bar. If you find that “absurd”, well, you’re welcome to your opinion … just
don’t do it in Kentucky.

Ham Solo on 2011 04 19, 2:21 pm CST

31. You overstate the scope of much of the constitution. The point is, I in no
way assert that states have the power to “take away” rights protected by the
federal constitution, simply that what many others assert is protected by the
federal constitution is, in fact, not.a protected right in the first place.

33. You may very well be right about the Kentucky constitution protecting the letter
at issue; it appears to be much more protective of expression than the First
Amendment. My peeve is with the various interpretations of the scope of the
First Amendment. These are the relevant provisions I found in a quick read:

men are, by nature, free and equal, and have certain inherent and inalienable
rights, among which may be reckoned

Fourth: The right of freely communicating their thoughts and opinions.

The right…of applying to those invested with the power of government for
redress of grievances or other proper purposes, by petition, address or
remonstrance. (not sure if this letter qualifies)

another provision:

person may freely and fully speak, write and print on any subject, being
responsible for the abuse of that liberty.

last clause could be a legitimate limitation here. I don’t have enough time to
analyze further now.

DirkJohanson on 2011 04 20, 10:16 am CST


Comments are closed.