SIXTH CIRCUIT HEARS JOHN M. BERRY JR./ ACLU FREE SPEECH ORAL ARGUMENT AGAINST THE KENTUCKY BAR ASSOCIATION

By LawReader Senior Editor Stan Billingsley

THE 6TH CIRCUIT ORAL ARGUMENT HEARING – JOHN M. BERRY JR. VS. KBA

It is appropriate that April 13th. was the day the 6th. Circuit Court of Appeals heard the free speech rights appeal of attorney John M. Berry, Jr. and the ACLU, against the Kentucky Bar Association. Thomas Jefferson, the advocate of the bill of rights, was born April 13, 1743.

Promptly at 9:30 a.m., U.S. Circuit Judge Rogers and U.S. Circuit Judge Daugherty, and Special Judge Zouhary (a District Judge from Toledo, Ohio) called the Berry appeal case to order. Each party was advised that they had a time limit of l5 minutes to make their argument. On their podium was a red, yellow and green light fixture. Green meant you could continue, yellow meant you had one minute left, and red meant your time is up.

Berry and the ACLU were represented by the Hon. William Sharp.   Sharp  was accompanied by the Hon. David Brandeis Tachau and Hon. Katherine E. McKune.

 

The KBA was represented by Hon. Mark Overstreet of Stites & Harbison. Overstreet carried a notebook file about 2.5 inches thick (about 600 pages). He appeared lonely sitting by himself, as all other hearings that morning had numerous lawyers attending them. He rarely referred to his notes, as he was well prepared and had committed everything to memory.

Berry’s attorneys were funded by the ACLU. (Perhaps you should consider sending them a donation since they are fighting for your rights!)

The KBA’s attorney, Mark Overstreet, was paid by the bar dues of every Kentucky lawyer, i.e. the KBA. His firm was hired by the KBA as an outside counsel, as apparently the Bar Counsel’s staff of nine full time lawyers are not qualified to make appearances in Federal Court.

William Sharp made an impressive argument, and was a crowd favorite. I was impressed when he quickly answered questions that were over my head. I was particularly impressed when he cited New York Times Co. v. Sullivan. See FN*

Overstreet, in my opinion, had a difficult task in trying to justify why Kentucky lawyers have only a limited right to free speech. Nevertheless the tall lanky Overstreet effectively presented an argument largely based on the lack of harm to Berry.

The appellate judges frequently asked highly technical questions, and both attorneys responded quickly and intelligently.

Overstreet and Stites and Harbison earned their fee with their excellent presentation. The author asked Mr. Overstreet what the dues paying members of the Kentucky Bar were paying him, but he smiled and referred the question to “his client”. The author has written the President of the KBA, Margaret Keane and asked that same question last week in a letter, but we have as yet had no response. The recently published financial report of the KBA (published in the March issue of Bench & Bar did not detail the expenses of the Bar in hiring outside counsel.)

It seems very upside down that dues paying members of the KBA must pay for a legal argument to be advanced against us, arguing that attorneys should have limited free speech rights.

Overstreet had a client to represent and he did a good job. I can recall representing clients, whose innocence I personally questioned, but fulfilled my obligation to be their advocate. Overstreet fulfilled his role as an attorney. Just because he advocated for limited free speech rights of attorneys, I just can’t believe that he personally buys that argument. That is just my opinion and he did not shirk his duty to fiercely represent his client. Someday I would like to buy him a drink and ask him what he personally thought about the actions of the Bar Counsel.

We have seen numerous attorneys and KBA officers shake their heads in disgust when they heard of the ethics investigation of Berry for merely writing a letter to the Legislative Ethics Commission. Many believe that if the 6th. Circuit upholds the KBA, then lawyers will forever be at risk for expressing their opinion about any case.

Judge Daugherty commented that she once read a criticism of the 6th. Circuit’s actions in a legal brief. She opined that she was not offended. One judge commented that trial judges have several remedies to prevent comment that actually causes harm by interfering with a trial, and wondered why a broad application of SCR 8.2 was necessary “as a compelling state interest”.

One judge asked Overstreet, something to the effect, “if a Judge was a crook, could an attorney not comment on that?” We did not hear Overstreet’s reply.

After the oral arguments expired, everyone left the courtroom and met in the hallway. The relief of everyone that the hearing was over, was heavy in the air. All parties shook hands, and there was no ill will evident. That is the way professional lawyers should conduct themselves.

A decision is possible in three to six months.

If Berry and the ACLU are successful, it is possible that the KBA could be ordered to pay the attorney fees of the ACLU. They will of course have to pay their own attorney fees. This ethics prosecution by the KBA could end up costing the dues paying members of the Ky. Bar Association several hundred thousand dollars.

The important question which was not discussed in this hearing, but which ominously remains over the Kentucky ethics procedures is the question of whether the Kentucky Supreme Court will fix this troubled system which grants almost unlimited power to the Bar Counsel’s Office.

FN *”New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel[2]; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person’s head, such cases—when they involve public figures—rarely prevail.”

 

THE UNDERLYING ARGUMENT

The essence of Berry’s appeal to the nations 2nd. Highest court was the application of SCR 8.2 by the KBA Bar Counsel’s Office, and the KBA, to limit the free speech of attorneys. As interpreted by the Bar Counsel, an attorney may not make a “truthful statement” if it is deemed “reckless”. Apparently Berry’s letter critical of the finding in behalf of Senator David Williams was believed by former Bar Counsel Linda Gosnell to be “reckless”. Her argument is based on the language of SCR 8.2 which appears to include members of the legislative ethics commission as judicial officers.

The complaint against Berry came directly, from a member of the Legislative Ethics Commission (Retired Ct. of Appeals Judge Paul Gudgel). I can’t get it out of my mind that in Linda Gosnell’s prosecution of former Circuit Judge Jay Bamberger, she accused him of “being dazzled” by the important people who came before him. Out of fear of the application of SCR 8.2 against me, I will not speculate on whether or not Linda Gosnell and the KBA were “dazzled” by Judge Paul Gudgel and Senator David Williams, when they decided to toss Senator Berry under the bus and seek sanctions against him for his having written a letter.

The Bar counsel’s Office issued a warning letter to attorney John M. Berry, Jr. of New Castle, Ky. Their letter was styled as “a warning” with the implication that he should chill his free speech. A warning Letter carries the possibility that any future ethics charges can be enhanced due to the issuance of the original warning letter. The KBA Inquiry Commission dismissed Gudgel’s complaint but it still sent Berry a warning letter. Berry was never given a hearing on the allegations that he violated SCR 8.2. He once commented to the author, “I never got to look my accusers in the eye.”

It has always amazed the author that the Bar Counsel’s office would carry water for the State Senate President, and toss Berry, a former State Senator, under the bus. Did the Bar Counsel not recognize that the First Amendment existed, and that even attorneys should have the right to speak freely? Will other lawyers be sanction if they express their personal opinion about acts of the Legislature?

Berry had written a letter to the Legislative Ethics Commission which took issue with their legal reasoning in not issuing an ethics finding against State Senate President David Williams. Berry’s letter was not intemperate, was not profane, and was merely critical of their findings. The letter was written after the Commission’s finding were released to the public and could not have interfered with their proceedings. It appears that the Legislative Ethics Commission just didn’t like anyone being critical of them. That is their right to be angry at criticism. But the conduct of the KBA and the Bar Counsel in being so willing to do the legislatures dirty work is very troubling.

In essence the Legislative Ethics Commission in their hearing, acquitted Sen. Williams on the basis that any violation of campaign finance laws that may have occurred were committed by employees or workers of Senator Williams and that therefore, although he benefited from his underlings work, he was not “ethically” liable for their violation of campaign rules.

Berry had commented in his letter that “some people “ find it bothering that Sen. Williams sat in on the committee’s deliberations when the public was excluded. Berry’s letter cautiously emphasized, “I do not go that far.” It was pointed out in the arguments that Berry never alleged that Williams did not have the right to sit in on his hearing, only that to “some people” this appeared improper.

Berry and the ACLU filed a Federal Civil Rights action in the U.S. District Court. District Judge Danny Reeves, dismissed the case and held that the Federal Courts do not have the right under the l4th. Amendment to enforce the constitutional rights of lawyers when their free speech rights are infringed by the State Bar Association. (Reeves has issued a similar ruling in another case brought by a Kentucky lawyer, and that case is currently on appeal to the 6th. Circuit.)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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