NATIONALLY RECOGNIZED CENTER FILES AMICUS BRIEF IN JOHN M. BERRY JR. CASE AGAINST THE KY. BAR ASSOC. INQUIRY COMMISSION – KBA has potential liability of hundreds of thousands of dollars, yet continues to run up their lawyer’s bills which may have to be paid by members of the bar association.

The Thomas Jefferson Center for the Protection of Free Expression has filed an Amicus brief in behalf of the free speech rights of Kentucky attorneys. This respected organization highlights the fact that the KBA has tolerated and continues to finance a legal argument that Kentucky lawyers can be punished for making truthful statements, and seeks to limit attorney’s free speech rights. (See comments of the Thomas Jefferson Center at footnote 3 below.)

Oral arguments will be heard on the Berry/ACLU appeal before the 6th. Circuit Court of Appeals in Cincinnati on April 13, 2012. This is a public hearing and we invite all Kentucky lawyers to attend this oral argument to offer support for their own free speech rights. We note that April 13th. Is Thomas Jefferson’s birthday!

The Berry case involved an attempt by the KBA to chill the free speech of John M. Berry Jr.. It is reported to LawReader that Berry and the ACLU over a year ago were demanding compensation for their legal bills in an amount in excess of $100,000.

In addition to the amount of fees claimed by the ACLU, it is highly probable that the legal bill of the KBA’s outside counsel is at least equal to the amount of legal fees claimed by the ACLU. The KBA is reported to have employed outside counsel, Stites and Harbison of Lexington. So if the ACLU was claiming over $100,000 in fees last year, then it is likely that the combined legal bills (plaintiff and defendant) will easily exceed $200,000 (and more likely $300,000). If the KBA loses the appeal currently pending before the 6th. Circuit Court of Appeals then the court may award legal fees to Berry and the ACLU for the violation of Berry’s free speech rights under the Federal Civil Rights statute.

Even if the KBA wins in the 6th. Circuit, then the KBA will be billed for the fee of Stites and Harbison (which is estimated to be something between $100,000 and $150,000.)

The KBA has recently announced an increase in the annual dues of all Kentucky lawyers. In 2012 alone this dues increase will be $1,360,000 (17,000 members X $80). As of 2011 the annual budget of the Bar Counsel’s office was $1,600,000. The Bar Counsel’s office budget is the largest single expense of the KBA.

One may ask, “is the KBA Board of Governors justified in spending hundreds of thousands of dollars to uphold their legal argument that the free speech rights of Kentucky lawyers may be limited is justified.” Before raising dues on Kentucky’s 17,000 lawyers did the Board consider making some cuts in the $1,600,000 annual budget of the Bar Counsel’s office?

We are aware of reports that the Board of Governors is writing new rules of conduct for the next Bar Counsel. We concede that the Board of Governors’ took a bold step in firing Linda Gosnell. We find these actions encouraging, but we would submit that their failure to advise Kentucky’s lawyers what is going on, is a continuing public relations disaster for the KBA.

The KBA is raising dues by an additional $1,350,000 in 2012. One of the expenditures they will have , will allow them to continue to finance the Berry/ACLU appeal, and therefore they are using our bar dues to limit the rights of the attorneys to exercise their rights under the 5th. Amendment.

We also note that some of the same legal issues raised in the Berry/ACLU case, have also been raised in the Deters case. Eric Deters appealed on a denial of due process claim which is also pending before the 6th. Circuit Court of Appeals. (Stites and Harbison are also representing the KBA in the Deters case.)

So the KBA is at risk for possible $300,000 to $400, 000 in legal fees for violation of attorneys civil rights claims. Even if Deters and Berry lose, the KBA will still be liable for the fees of their outside counsel, and between the two cases, the KBA will be liable for their own outside counsel’s fees which may exceed $200,000 to $300,000.

Is this expenditure of fees to outside counsel necessary? The Bar Counsel’s office has 24 employees including nine full time lawyers. It is troublesome that with a full time staff of nine lawyers they apparently don’t have anyone qualified to represent the KBA in the federal courts. The Board is about to hire a new Bar Counsel, and we would suggest that they require the new Bar Counsel to employ a couple of lawyers who have experience in Federal Court. If the Bar Counsel’s office has attorneys skilled in Federal Court practice, this could save hundreds of thousands of dollars a year.

The KBA Board of Governors apparently has the authority to authorize appeals. The Board of Governors apparently has the authority to decide if it is necessary for the Bar Counsel’s office to employ outside counsel and to not require the Bar Counsel’s office to handle its own appeals with staff attorneys. We would ask if the Bar Counsel’s office needs to employ outside counsel, why did they allow Linda Gosnell to employ a firm which employs her daughter? We don’t know why Linda Gosnell was fired on Nov. 21, 2011, since the KBA refuses to provide a justification for Gosnell’s firing. It has been 95 days since Linda Gosnell was fired and the KBA still has not notified its members of the reasons for the firing of the Chief Bar Counsel.

LawReader asked a Board member to comment on the reasons Gosnell was fired, and he refused, citing the “confidentiality rules”, which he said prevented him from commenting. Likewise KBA president Margaret Keane has refused to explain the reasons for Gosnell’s firing.

We have closely read the “confidentiality rule” found in the Supreme Court Rules and the only justification for “confidentiality” is found in SCR 3.150. (At this point the author, a licensed Kentucky lawyer, might risk sanctions if he further explained the potential significance of the application of SCR 3.150 to the failure of the KBA to disclose the reasons for the discharge of Linda Gosnell.)

Therefore we will leave it to the reader to determine if SCR 3.150 protects the KBA from disclosing the reason for Linda Gosnell’s firing, and also for suppressing the Houlihan Report which purportedly involved former BAR President Barbara Bonar. We acknowledge that we have no admissible information on the reasons for the suppression of the Houlihan Report or the firing of Linda Gosnell.

SCR 3.150 Access to disciplinary information

(1) Confidentiality. In a discipline matter, prior to a rendition of a finding of a violation of these Rules by the Trial Commissioner or the Board and the recommendation of the imposition of a public sanction, the proceeding is confidential.

(2)

(a) Notwithstanding subsection (1), the pendency, subject matter and status may be disclosed by Bar Counsel if:

i. The Respondent has waived confidentiality;

ii. The proceeding involves public reciprocal discipline;

iii. The disclosure of any information is made for the purpose of conducting an investigation by the Inquiry Commission or the Office of Bar Counsel, or;

iv. A Motion for Temporary Suspension is pending.

(b) After considering the protection of the public, the interests of the Bar, and the interest of the Respondent in maintaining the confidentiality of the proceeding prior to a finding of a violation of the Rules, the pendency, subject matter and status may also be disclosed by Bar Counsel at the discretion of the Chair of the Inquiry Commission, or of the Chair’s lawyer member designee, if:

i. The proceeding is based upon an allegation that the Respondent has been charged with a crime arising from the same nexus of facts; or

ii. The proceeding is based upon a finding by a court in a civil matter that an attorney has committed conduct that may constitute a violation of the Rules of Professional Conduct.

(3) Duty of Participants. All Participants in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality requirement of this Rule.

Footnote 1

The Thomas Jefferson Center for the Protection of Free Expression is an independently funded organization associated with the University of Virginia and dedicated to the protection of freedom of speech. Founded in 1989 and headed by former UVA president Robert M. O’Neil since its founding, the organization manages a number of programs and activities to support its mission, including testifying before Congress, providing legal briefs, educational programs, a variety of art-related exhibit programs and prizes, and the Jefferson Muzzles. Website: http://www.tjcenter.org (See footnotes about the Thomas Jefferson Center below)

A primary purpose of the nation’s civil rights laws is to protect citizens from abuses by government, including police misconduct. Civil rights laws allow attorney fees and compensatory and punitive damages as incentives for injured parties to enforce their rights.

Organizational Description: The Thomas Jefferson Center for the Protection of Free Expression is devoted solely to the defense of free expression. While its charge is sharply focused, the Center’s mission is broad. It is as concerned with the musician as with the mass media, with the painter as with the publisher, and as much with the sculptor as the editor. Located in Charlottesville, Virginia, the Center enjoys close ties to the University of Virginia, but is an autonomous, not-for-profit entity.

Services Provided: Since its founding in 1990, the Center has fulfilled its mission through a wide range of programs in education and the arts, and active participation in judicial matters involving free expression (most often in the form of friend of the court legal briefs). The Center’s director, Robert M. O’Neil, is a nationally recognized expert on matters involving the First Amendment and academic freedom and serves as a resource for members of the media and general public on questions involving either of these areas.

Footnote 2

Amount of attorney fees: Perhaps the most widely followed set of rates are what is called the Laffey Matrix that is available from the United States Attorney’s Office for the District of Columbia. These have been available since 1982 and are updated each year. The hourly rates are shown by years of experience. For June 1, 2006 to May 31, 2007 the rates are as follows: 20+ years of experience, $425 per hour; 11–19 years, $375; 8–10 years, $305; 4–7 years, $245; 1–3 years, $205; and Paralegals/law clerks $120 . The Laffey Matrix appears to be growing in acceptance by many courts throughout the United States, but the matrix must be adjusted to account for higher or lower costs for legal services in other areas.

Footnote 3

Arguments of the Thomas Jefferson Center for the Protection of Free Expression.

“there is not a compelling state reason to justify restricting attorneys’ speech concerning the (Legislative) ethics commission.”

“the (Federal) District Court failed to give proper weight to the fact that the Regulation (Ky. Supreme Court Rule) restricts speech on matters of public concern.”

 

 

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