Marcus Carey Comments on Federal Award for $191,000 in fees and costs against the KBA

August 23, 2012

Kentucky Attorneys Eyebrows Raised

Stan Billingsley over at has a story up today regarding the efforts of the KBA to sanction a Kentucky attorney for criticism of a legislative committee. Not only did they end up losing the case, but now they have been ordered to pay $191,000 in attorney’s fees and costs. Where will that come from?

The prosecution of an attorney for making a truthful statement critical of a legislative body has raised the eyebrows of many Kentucky Attorneys. Now the attorneys who disapproved of the prosecution of Berry will have to consider the high cost of the attempt by the Kentucky Bar Association to enforce this law which was found unconstitutional as applied in the Berry case.
The Sixth Circuit ruling remanded the case to U.S. District Judge Danny Reeves to consider an award of attorney fees and costs to the successful party. Judge Reeves’s order awarded $191,588.64 in attorney fees and court costs to be paid by the Kentucky Bar Association.

In accordance with the Federal Civil Rights Act, the KBA was required to pay the attorney fees and court costs of the winning party. This large legal bill will have to come out of the pockets of Kentucky’s 17,200 lawyers, as the KBA is totally funded by the dues of Kentucky lawyers. It is possible that the KBA legal bill will be covered by some insurance policy. We would expect that if there is such insurance coverage for the KBA, that the insurance company may be reviewing the premium paid by the KBA in the light of the substantial financial consequences for violating constitutional rights of lawyers. Any premium paid for such coverage will come from the KBA dues paid by Kentucky lawyers.

Attorneys are telling LawReader that they can’t understand why the Board of Governors failed to exercise control over the Bar Counsel, Linda Gosnell, and allowed this wasteful expenditure of KBA resources to defend a rule that denies the constitutional rights of lawyers. One expert in federal litigation cases suggests that the total cost of this prosecution may have cost the KBA close to a million dollars when all the direct and indirect costs, travel expenses and costs of the KBA, and lost man hours are considered. Kentucky lawyers will now have to pay for the privilege of having their free speech rights attacked.

I’m surprised that lawyers are still wondering about such things. The third branch of government, run with an iron fist by the Kentucky Supreme Court, is the most concentrated power in the Commonwealth. Only seven people run the Judicial branch of government. It only takes four of them to bring their power to bear and, in reality, the power of the Chief Justice is immense.

Where else are the lives and livelihoods of so many lawyers, judges and court personnel not to mention the lives and liberty of all Kentuckians vested in so few?

They are determined to have their way and the cost of defending their exercise of power is easily spread among the bar so there is really no risk to them at all.

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