JEFF. COUNTY ATTN. O’ CONNELL FIGHTS SANCTION BY KBA Will the Ky. Supreme Court allow free speech of prosecutors to be limited?

By Gwendolyn Billingsley, LawReader CEO June 17, 2013
Jefferson County Attorney Michael O’Connell has received a private admonition from the KBA Inquiry Commission, for “violating ethics rules by sending a harshly worded letter to district judges last December, urging them to stop what he called ‘disingenuous maneuvering’ by defense lawyers in DUI and other cases.” This allegation concerns suppression motions where the defendant has moved to suppress evidence by the commonwealth.

O’Connell said he has decided to reject the private sanction by the KBA Inquiry Commission even though it placed him at risk for a greater sanction by contesting the “private admonition”.

O’Connell had complained in a letter sent to a number of Jefferson County Judges, that judges were allowing defense lawyers to file motions to suppress evidence after trials began…”after the prohibition kicks in against trying a defendant twice for the same crime. That meant that prosecutors are limited in appealing an adverse ruling by the trial judge in a DUI case. “
Prominent defense lawyers including Benham Sims said that O’Connell’s argument was “ironic” since he had his office won a case before the Ky. Supreme Court in 2012 in which the supreme court said it was improper for defense lawyers to contact judges to get client’s bonds reduced.”

A former KBA President,” Buzz” English representing O’Connell argued that “O’Connell is an elected official…he took action to improve the quality and administration of justice.”

The effort to silence O’Connell is consistent with the KBA’s attempt to silence attorney John M. Berry Jr. when he was critical of the procedures followed in the ethics prosecution of Senator David Williams by the Legislative Ethics Commission. The 6th. Circuit found in Berry’s free speech rights and imposed court costs against the KBA of some $200,000. Berry sought to express his political opinion, and it appears that Mike O’Connell was doing the same thing.

The KBA has sanctioned O’Connell for expressing a political opinion on a legal subject. O’Connell did not interrupt a meeting, he was not in contempt of court. He merely expressed his disagreement with some judges who apply a local rule of procedure with which he disagrees. Other judges around the state do not necessarily apply that local Jefferson District Court rule.
The KBA has found that O’Connell’s letter was an ex parte communication.

“Ex parte contact occurs when an attorney communicates with another party outside the presence of that party’s attorney. Ex parte contact also describes a judge who communicates with one party to a lawsuit to the exclusion of the other party or parties, or a judge who initiates discussions about a case with disinterested third parties. Canon 3(A)(4) of the American Bar Association (ABA) Model Code of Judicial Conduct discourages judges from such ex parte communications. Under rule 4.2 of the ABA Model Rules of Professional Responsibility, a lawyer should refrain from contacting a party who the lawyer knows is represented by another attorney, unless the lawyer has the consent of the other attorney or is authorized by law to do so.” – Legal Dictionary

This attempt by the KBA to control the free speech of John M. Berry Jr. and now County Attorney Mike O’Connell is troubling. The controversial rule cited in the Berry case is SCR 3.130 (8.2) which provides that a Kentucky lawyer may be sanctioned even if he makes a truthful statement but does so “with reckless disregard as to its truth or falsity”. The KBA found a rule to apply to Berry and now they are going after Mike O’Connell.

It has been reported to LawReader that the Supreme Court is considering an amendment to SCR 3.130 (8.2) to expand the definition of “public legal officer” to clearly include police officers. If this is true then the Supreme Court will be allowing an attorney to be sanctioned for pointing out the misdeeds of a police officer…..surely the Supreme Court will not make that mistake??

The rules says:
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 effort to limit the free speech of lawyers is continuing. If a lawyer sees fraud, incompetence, continued error in their work, of judges, hearing officers, police officers and prosecutors, then the lawyer must keep silent. Whistleblowers aren’t allowed in the legal profession!!!

The essence of the original complaint against O’Connell is that his letter was apparently in violation of Supreme Court Rule 3.130(3.5) which holds:

SCR 3.130(3.5) Impartiality and decorum of the tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law, local rule, or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90
The official Commentary of the Ky. Supreme Court limits the ex parte rule in some situations and requires that all lawyers “stand firm against abuse” by a judge.

SUPREME COURT COMMENTARY 2009:
(1) Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.
(2) During the proceeding a lawyer may not communicate ex parte as to the merits of the cause with persons serving in an official capacity in the proceeding, such as judges, commissioners or jurors, unless authorized to do so by law or court order.
(3) A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.
(4) The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
(5) The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(m).

In 2002 the Supreme court discussed private meetings between prosecutors and judges.

Ex Parte Meetings between Prosecutors And Judges

KENTUCKY BAR ASSOCIATION Ethics Opinion KBA E-419
Issued: May 2002

Subject: Ex Parte Communication Issues in Meetings between Prosecutors and Judges

Question: May prosecutors (Commonwealth’s attorneys or county attorneys) arrange and conduct meetings with judges for the purpose of establishing informal policies or shared understandings on issues likely to influence outcomes in pending or future criminal cases?

Answer: No.

That opinion did not discuss letters to judges.

Other Supreme Court rules conflict with the rules being applied against O’Connell. For example the official commentary of the Supreme Court says that “a constitutional rights exists to communicate with the government …”

SCR 3.130(4.2) Communication with person represented by counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90

SUPREME COURT COMMENTARY 2009:
(1) This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
(2) This Rule applies to communications with any person, who is represented by counsel concerning the matter to which the communication relates.
(3) The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.
(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.
(5) Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused.
(6) A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.
(7) In the case of a represented organization, this Rule prohibits communications to a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(g). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.
(8) The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
(9) In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer’s communications are subject to Rule 4.3.

We believe that Judge Gold, Judge Sims, and the other advocates who have challenged Mike O’ Connell make a good legal argument. However their right to criticize O’Connell is apparently in violation of SCR 3.130 (8.2). After all O’Connell is a “public legal officer” who is protected against criticism by other lawyers. Will the KBA now go after these respected attorneys in Louisville for expressing their political opinions?? That would be a shame.

We don’t believe that Gold, Sims, or others should be sanctioned or restricted in their right to criticize O’Connell. We likewise don’t believe that O’Connell should be sanctioned for expressing his opinion about local court rulings. We don’t need the government limiting political speech. Nobody’s life has been threatened, no blood has been spilled , no defamation has occurred…where is the sting?.

My husband attended the Sixth Circuit Appellate hearing in the John M. Berry Jr. case in which the KBA sought to use SCR 3.130 (8.2) to sanction Berry for writing a letter.

A female judge, Judge Daugherty, one of the three judges on the Sixth Circuit panel, made the statement:

“We are often criticized for our rulings,…it hasn’t seem to hurt us at all.”

We believe that Judge Daugherty’s philosophy should be applied to the O’Connell case.

We sometimes think of the KBA as being like the Bourbon Kings. It was said that the Bourbon Kings, ”learned nothing and forgot nothing.”

We see that the ACLU is representing O’Connell. Imagine…the ACLU representing a hard nosed prosecutor!!!! That should send a message to the KBA that their continuing attempt to control political speech is in trouble. Buzz English a former KBA President is also representing O’Connell.

The Berry case cost the KBA $200,000 to hire their own outside counsel, and $200,000 in attorney fees awarded by the 6th. Circuit to the ACLU lawyers. Will the KBA learn nothing from the Berry case?

We are troubled by another issue that should be considered when the reasoning of the KBA is considered. In the Fen Phen case, one of the attorneys has sought discovery from the KBA about the conduct of one of the KBA’s employees conducting a private meeting with Federal Judge Danny Reeves during the trial. The ex parte meeting was in the judges office and conducted while other attorneys were in the court room for the criminal trial. The defense attorney for Stanley Chesley has sought discovery on whether such a hearing actually occurred and if so what was said. The KBA witness later testified in the Fen Phen criminal trial which was ongoing during the alleged ex parte meeting.

Will the KBA ever disclose what their own employee spoke to the Federal Judge about? Why is ex parte communications okay for the KBA but improper for a prosecutor?

Once again there are issues about the privileged status of the KBA. If the KBA Board does something it is okay and should be protected by the confidentiality rule…but if anyone else does the same thing, then they will be vigorously prosecuted for ethics violations.

The Kentucky Supreme Court is the author of the discipline rules. They are ultimately responsible for the conduct of the KBA and the application of Supreme Court Rules. Will the Supreme Court once again allow the KBA to savage the First Amendment?

O’Connell and the Jefferson District Judges apparently disagree on a complex legal issue regarding suppression motions. The Ky. Supreme Court could stop this fight by merely adopting a rule and clearly explaining what it means. The rule and procedures should be clarified….the best way to do this is not to start a war over the first amendment… this is the type of war the KBA and the Supreme Court has been loosing lately!

-Gwen Billingsley-

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