Attorney Calls Shenanigans on Ethics Commission, Wins Appeal

Kentucky Attorney John Berry was irked when the Kentucky Legislative Commission excluded the public from a hearing about allegations against Senate President David Williams, but allowed Williams to stay. The Commission later dismissed the complaint against Williams.

Berry complained in a letter to the Commission that the whole situation was shady. The Commission whined to the Kentucky Bar Association, which then warned Berry that his conduct violated the Kentucky Rules of Professional Conduct. Last week, the Sixth Circuit Court of Appeals clarified for the Kentucky Bar that lawyers, much like regular people, have free speech rights and can write letters.

But the case must be more complicated than that, right?

Not really.

In 2007, the Kentucky Legislative Ethics Commission received a complaint regarding Williams' fundraising. At the hearing on the matter, the Commission called an executive session and excluded the media, Berry, and other members of the public, but allowed Williams to be present.

After the complaint against Williams was dismissed, Berry wrote a letter to the Commission, (which he also distributed to the public and the media), criticizing the disposition of the matter:

The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order ... that exonerated him, was contrary to the undisputed evidence that was presented.

(Gave cause for some to speculate that the deck was stacked? Berry doesn't hold back.)

The Commission complained to the Kentucky Bar Association (KBA) Inquiry Commission, which investigated the matter and informed Berry that his letter violated Kentucky Rule of Professional Conduct 8.2(a). The rule states:

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.

There was no formal discipline; just a warning that Berry should avoid making similar statements in the future.

Berry, however, refused to back down. He challenged the warning, and the Sixth Circuit Court of Appeals ultimately sided with him.

Circuit Judges John Rogers and Martha Craig agreed that "The warning letter implied a threat of future enforcement that elevated the injury from subjective chill to actual injury." The third judge, U.S District Judge Jack Zouhary, thought that the letter violated Berry's free speech rights, but that the appeal was "more about stubborn Berry having the last word in his dispute with the KBA than about the First Amendment."

Either way, Berry and free speech win. Go America.

Related Resources:

• Berry v. Schmitt (Sixth Circuit Court of Appeals)
• Sweet Corn Festival Policy Violated Christians' Free Speech Rights (FindLaw's Sixth Circuit Blog)
• Sixth Circuit Bound? Teen Sues Over Jesus Is Not a Homophobe Shirt (FindLaw's Sixth Circuit Blog)