Federal court rejects challenge to Ky. limits on attorney speech

Tuesday, April 12, 2011

LOUISVILLE, Ky. — Public comments by attorneys in Kentucky may be restricted as part of a general effort to uphold public confidence in the judiciary, even if the comments are true but considered reckless, a federal judge ruled today.

U.S. District Judge Danny C. Reeves found that the Kentucky Supreme Court's regulations as enforced by the bar association on attorney speech are constitutional, even if they restrict some speech legally protected by the First Amendment.

“Although the rule extends to some constitutionally protected speech — namely, reckless true statements — it does not reach a substantial number of impermissible applications,” Reeves wrote in the 16-page decision.

Reeves' decision comes in the case of attorney John M. Berry, who challenged the Kentucky Bar Association's ability to regulate what attorneys can say. The bar issued a warning letter to Berry in 2007 over comments he made criticizing the state's Legislative Ethics Commission.

Messages left for American Civil Liberties Union attorney William Sharp, who represented Berry, and the Kentucky Bar Association, were not returned in time for this story.

Berry, a Henry County lawyer, former state senator and brother of writer Wendell Berry, sued the Kentucky Bar Association in 2009 after receiving a letter saying he “did not adequately comply” with an ethics rule on false statements. The letter, which was kept in Berry's file for a year, advised him to “conform your conduct to the requirements of the Rules of Professional Conduct.”

The dispute stemmed from Berry's criticism of the ethics commission decision to dismiss a complaint in 2007 against Kentucky Senate President David Williams involving campaign money solicited from Frankfort lobbyist. The commission ruled Williams' Senate aides innocently erred by asking lobbyist for up to $50,000 each at a fundraising luncheon for Senate Republicans. State law bans lobbyists from giving to state legislative campaigns.

Berry sent a letter to the ethics commission, then shared it with reporters, prompting a complaint by ethics commissioner and retired state Court of Appeals Chief Judge Paul Gudgel. Gudgel told the Kentucky Bar Association that “intentionally impugning the reputation” of a commission member “to advance his own agenda” was improper.

After a 15-month professional conduct investigation, the bar dismissed Gudgel's complaint, but issued the letter to Berry.

The rule in question bans statements “that a lawyer knows to be false or with reckless disregard as to its truth or falsity.” Reeves noted that similar rules in other states have withstood constitutional challenges because states have an interest in maintaining public confidence in the judiciary.

“On its face, the rule does not bar honest, informed criticism,” Reeves wrote. “It merely requires lawyers to speak with greater care and civility than is the norm in political debate.”

Reeves also found that federal courts have no jurisdiction to overturn state bar association disciplinary actions, no matter what form the discipline takes.

To resolve Berry's challenge to the disciplinary actions, a federal judge would have to conduct a new inquiry into whether Berry's comments violated bar regulations, Reeves wrote.

“For Berry to prevail, the Court would have to find that the Commission's conclusion on that point was improper,” Reeves wrote. “Such second-guessing is inappropriate.”