By LawReader Senior Editor Stan Billingsley July 28, 2012

On Friday July 27, 2012, the Sixth Circuit Court of Appeals issued a decision that Supreme Court Rule 8.2, which allows a Kentucky Attorney to be sanctioned for “truthful but reckless” statements, was unconstitutional as applied to the statements of John M. Berry Jr.

The Sixth Circuit, the second highest court in the United States, did not throw out the entire rule, but they clearly held that the John M. Berry Jr’s. letter to the Legislative Ethics Commission was a first amendment right, and that the actions of the KBA Inquiry Commission improperly imposed a “chilling effect” on all lawyers free speech rights.

In, A Parliament of Owls, a novel to be published in August, authored by Stan Billingsley and published by LawReader Books, this author reports that Ohio and Arkansas have both amended their Bar Rules which until recently contained identical wording to the Kentucky Rule.

Both states have removed the language in their rule which allows sanctions against attorneys who make “truthful but reckless” statements. Both Ohio and Arkansas also limited the application of the “speech” rule to “judges and adjudicatory officials. The Kentucky rule continues to impose limits on free speech for lawyers “truthful but reckless” comments about “judges and other public legal officers”.

Attorneys Mark R. Overstreet, Stites & Harbison, Pllc, Frankfort, Kentucky, and Bethany A. Breetz, Stites & Harbison, Louisville, represented the Inquiry Commission and the Kentucky Bar Association in their attempt to limit the free speech rights of Kentucky lawyers.

I attended the oral arguments in Cincinnati in the Berry/ACLU case against the KBA Inquiry Commission. Mr. Overstreet lost this case, but as LawReader reported some months ago, Overstreet, in our opinion, did a very professional job. It was the law that was defeated not Mr. Overstreet and not Bethany Breetz.

After the oral arguments before the Sixth Circuit ended, I approached Mr. Overstreet and identified myself. I asked him how much the KBA paid him and his firm for their legal services. Mr. Overstreet politely smiled and said, “You’ll have to ask my client.” We have asked “his client” and to this date, we have received no answer.

We have asked the KBA how much they have paid for outside counsel in the last two years. We wrote the KBA President Maggie Keane in April and she never responded to our letter.

The first week of July a new President of the KBA was sworn in. We addressed a request to KBA President Doug Myers to provide us with the answers that Maggie Keane refused to provide. Our question is “How much has the KBA paid for outside counsel in the last two years?” That question if answered should reveal how much the KBA paid to Overstreet and Breetz to attempt to uphold SCR 8.2, which limits attorneys free speech rights.

We do not in any way suggest that Stites and Harbison didn’t earn whatever fee they got paid, that is not the point. As we have repeatedly said, we think they did a very professional job in trying to defend a very bad law. They were hired to defend a client and they did the best that could be done in trying to uphold a very bad law.

The point is that the entire KBA is financed by a membership dues of every Kentucky lawyer. I personally have paid dues to the KBA for 41 years. As a dues paying member of the KBA, I believe any lawyer (and any member of the public) have the right to know how the KBA spends “our” money.

Stites and Harbison is not finished in their work in the Berry/ACLU case. Even though KBA President Myers told the press that the KBA will not appeal the decision of the Sixth Circuit, the issue of attorney fees claimed by the ACLU in defense of Berry is still to be decided by U.S. District Judge Danny Reeves. We assume that the KBA will oppose the award of attorney fees, which are authorized in Section 1983 Federal Civil Rights actions.

We are awaiting Judge Danny Reeves ruling on the attorney fees to be awarded to the ACLU attorneys for their successful challenge to SCR 8.2. It is an important issue of concern to the dues paying members of the Kentucky Bar Association. We should be entitled to understand how much the KBA paid Stites and Harbison . This payment will provides a basis to evaluate the fee awarded (if any) by Judge Reeves to the ACLU attorneys who represented Berry.

We estimate that the fee to Stites and Harbison will be at least $100,000. That fee is a bill to be paid by the KBA, and Judge Reeves has no authority to limit the defendant’s fee.

But Judge Reeves does have the discretion to award attorneys fees as court costs for “the prevailing party.” See below: Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C.A. § 1988)

We believe the members of the bar are entitled to compare the fee award of Judge Reeves to the ACLU, against the fee paid to Stites and Harbison by the KBA. It is likely that the fee claim of the ACLU will at least be equal to the fee paid to Stites and Harbison. The KBA is liable for both fees since Berry’s challenge to SCR 8.2 was successful.

It would be a sad ending to this case if Judge Reeves exercises his discretion to deny a “reasonable” fee to the ACLU attorneys. A comparison of the KBA fee to Stites and Harbison is essential to evaluate the “reasonableness” of Judge Reeves fee award.

So the information we have requested from the KBA President revealing how much the KBA has paid to Stites and Harbison in this case, is a very relevant public issue of concern, at least to the 17,200 dues paying members of the Kentucky Bar Association.

We respectfully believe the ACLU should be treated fairly. A comparison between the attorney fees the KBA paid to Stites and Harbison and the discretionary fee award of Judge Reeves will reveal much about our system of justice.

If the ACLU is not awarded a “reasonable” fee, then Judge Reeves will be revealing his level of concern for the rights of attorneys who have had their constitutional rights abridged by the Kentucky Bar Association.

Not a penny of this money will go to Berry!

It would be a blow to all attorneys, if Judge Reeves fails to send a message to the KBA that if they intend to unconstitutionally limit the rights of attorneys, that they will at least have to pay the court costs of the prevailing party.

We trust that the fact that Judge Reeves was overruled by the Sixth Circuit will have no bearing on his fee award.


Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C.A. § 1988)
§ 1988. Proceedings in vindication of civil rights
(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title,, [FN1] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
(c) Expert fees
In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.

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