A KENTUCKY LAWYER COULD NOT HAVE SAID THIS WITHOUT RISK OF SANCTION…

Washington Post columnist E.J. Dionne wrote an article published on June 28, 2012 which called on Supreme court Justice Scalia to resign. (See article below)

In the article Dionne wrote that: “Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase.”

His article sites other acts and statements which he believes justifies the duty of Scalia to retire from the bench.

While we believe that it is still permissible for a Kentucky lawyer to read the Dionne article, it would be an ethical violation for a Kentucky lawyer to make the kind of statements made by Dionne.

Under SCR 3.130 (8.2) a Kentucky lawyer may be sanctioned if he makes a truthful statement “with reckless disregard as to its truth or falsity”

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.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
HISTORY: Adopted by Order 89-1, eff. 1-1-90

The rule fails to explain who gets to determine if a statement is “reckless”. We would suggest that in the Berry case, the Bar Counsel and the KBA have reserved to themselves the right to determine if a statement made by a lawyer is “reckless” in other words, if they disagree with your statement, they can investigate you like they did John M. Berry, Jr.
There are two Kentucky cases before the Sixth Circuit Court of Appeals where the Kentucky limitation of free speech of attorneys is being considered. The lead case concerns a letter written by former State Senator John M. Berry, Jr. to the Legislative Ethics Commission.
Berry had written a polite and temperate letter to the Legislative Ethics Commission after they dismissed an ethics complaint against Sen. David Williams. Berry took issue with the Legislative Ethics Commission legal reasoning in finding that Williams was not responsible for the acts of his agents and employees regarding a campaign fund raising issue.
Berry’s letter upset former Court of Appeals Judge Paul Gudgel, a member of the Legislative Ethics Commission. It is reported that Gudgel called the Bar Counsel and sought guidance as to whether or not Berry’s letter was an ethical violation.
The Bar Counsel found SCR 8.2 and for almost two years investigated Berry. We have always been troubled by the length of time the Bar Counsel took to complete this case. Berry admitted he wrote the letter, and the only issue was whether or not it was “false, or true but reckless”, and whether or not the Legislative Ethics Commission was a protected party.
The Bar Counsel issued a “warning letter” to Berry and placed it in his personnel file. He was advised that if he committed no more (free speech) violations for one year the letter would be withdrawn from his personnel file.
Berry was never given a trial, he never got to have a hearing of any kind before the official warning letter was placed in his personnel file.
The ACLU joined with Berry to seek relief under the Federal Civil Rights Act. The ACLU argued that this practice imposed a chilling effect on an attorneys free speech rights.
The dues paying members of the Kentucky legal profession are paying the cost of the outside counsel hired by the KBA to fight against lawyers free speech rights.
At this point SCR 8.2 still stands. The Sixth Circuit has had the case for over six months, and one would expect a decision is eminent.
The following article by E.J. Dionne ( a non-lawyer) demonstrates the type of free speech which apparently is unethical for a Kentucky lawyer to express.
We would argue that if a Kentucky lawyer wrote such an article about a Kentucky judge, prosecutor, or “public legal officer” he could be sanctioned. We have trouble trying to find the “compelling state interest” in limited a lawyer’s free speech rights.
It would be dangerous for us to agree with the Dionne article, as SCR 8.2 does not limit its application to Kentucky judges or Kentucky legal officers.
When the ruling of the Sixth Circuit comes down, we will once again ask the KBA how much of our dues money they spent to defend SCR 8.2. We asked the KBA president on April 10, 2012 to disclose the expenditure of dues money to hire outside counsel in this and other cases…we have never received such an answer. So licensed Kentucky lawyers are paying to have their free speech rights limited.
We note that the Kentucky Supreme Court (in 1990) adopted the language in SCR 8.2, and they can change that language at their discretion.
DIONNE ARTICLE THAT WOULD LIKELY RESULT IN A SANCTION OF A KENTUCKY LAWYER IF HE/SHE HAD WRITTEN THIS:
JUSTICE ANTONIN SCALIA NEEDS TO RESIGN FROM THE SUPREME COURT.
By E.J. Dionne Jr., Published: June 27The Washington Post
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
“After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”
What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.
Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring. Recall a 2004 incident. Three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if . . . my ‘impartiality might reasonably be questioned,’ ” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees.
“I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
ejdionne@washpost.com

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