October 05, 2012 Top Story

State Bar's Threat of Sanctions Violates Right to Free Speech

Rule of professional conduct is unconstitutional as applied to attorney's comments

Katerina E. Milenkovski

In Berry v. Schmitt, a federal appellate court scrutinized a state’s ability to regulate attorney criticism of judges and the judicial system to determine whether that regulation violates the attorney’s right as an individual to free speech. The United States Court of Appeals for the Sixth Circuit ruled that the Kentucky Bar Association went too far in threatening to discipline an attorney for criticizing the Kentucky Legislative Ethics Commission.

Origins of the Dispute

The case arose from comments by an attorney criticizing the Kentucky Legislative Ethics Commission’s handling of allegations against the Kentucky Senate president. The attorney attended a public hearing of the Commission concerning the allegations, but was excluded by the Commission from the proceedings, along with the public and media. The Commission permitted only the Kentucky Senate President to remain.

The attorney sent a letter to the Commission, criticizing its procedures. He said that the Commission’s decision to exclude interested citizens had an appearance of impropriety. He noted that he was not willing to go so far as to actually allege that the “deck was stacked” in favor of clearing the Senate president of the charges, but that he believed the Commission’s order exonerating the Senate president of ethical wrongdoing was contrary to the evidence.

After the attorney’s criticisms were published by local media, the Kentucky Bar Association investigated his actions under the Kentucky Rules of Professional Conduct. The Bar considered whether his statements violated Supreme Court Rule 3.130(8.2), which provides that “[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.”

Ultimately, the Bar’s Inquiry Commission warned the attorney that his conduct had violated the rule “by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.” The Inquiry Commission did not discipline or sanction the attorney; instead, he was sent a letter of warning instructing him to conform his future conduct to the Rules of Professional Conduct.

The attorney filed suit, alleging that the bar association was depriving him of his right to free speech because of its threats of enforcement for any further criticism of the Legislative Ethics Commission. The bar association moved for summary judgment, arguing that its conduct was a proper exercise of Rule 8.2(a) because it did not restrict a substantial amount of protected speech. The federal district court agreed with the bar association and granted summary judgment.

Court Finds Injury, Distinguishes Ethics and Defamation

On appeal, the Sixth Circuit disagreed with the district court, holding that Rule 8.2(a) is unconstitutional as applied to the attorney’s speech. The court found that he had been injured by the Commission’s actions, even though he had not been formally disciplined. According to the court, the threat of discipline had sufficiently chilled his speech as to be actionable.

The attorney argued that he could be punished only if his statements were defamatory under the standard established in New York Times Co. v. Sullivan. The court held, however, that the defamation standard was too restrictive to apply in the ethical context, where the objective is not to compensate an individual who has been injured by false or reckless speech but to preserve public confidence in the judicial system.

Noting that “ethics rules can permissibly reach speech that defamation suits cannot,” the court reasoned that the proper rule might be one previously articulated by the Ninth Circuit. That rule asks “what the reasonable attorney, considered in light of all of his professional functions, would do in the same or similar circumstances.” The court found that the attorney had disclosed all of the facts that supported his opinions—none of which were false or defamatory—and, therefore, his conduct was not sanctionable.

Lawyers May Not Be Aware of Rules Like Rule 8.2(a)

“The first takeaway is that there is a rule that deals with the extent to which lawyers can make comments about adjudicatory bodies on matters in which a lawyer is not involved,” stresses Gregory R. Hanthorn, Atlanta, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “It’s almost surprising that there is such a provision as Rule 8.2(a). Most of the time, when a lawyer is accused by a disciplinary council of making a statement he shouldn’t have made, it arises out of a concern of tampering with or prejudicing fact finding in a case the lawyer is involved with. This is not the case here. Here we have a lawyer as a private citizen saying something.”

“I didn’t see the comment as anything all that upsetting, really,” says Oran F. Whiting, Chicago, cochair of the Section’s Ethics and Professionalism Committee. “I don’t know what was going on in Kentucky and the home-state politics, but there almost had to be some underlying reason for this to rise to the level it did. The statement itself was somewhat tepid and ultimately Berry even backed away from that tepid criticism, saying only that the procedure could give the impression that something is not right,” explains Whiting. “For the disciplinary committee to basically discipline Berry or threaten to do so, and warn him against making any other statement is really ridiculous,” adds Whiting.

“My advice is to be careful about what you say and the venue, the medium in which you say it,” Whiting cautions. “If he had come out of a court room after losing a case and made a similar statement on the courthouse steps, I don’t think it would have garnered this much attention. I think people would have looked at it as an emotional response from a lawyer coming out of battle—letting off steam—and not as a First Amendment issue.” “The wake-up call for the practitioners is to be aware that even cases that the lawyer is not involved in can present some ethical issues under the Model Rules,” warns Hanthorn.

Katerina E. Milenkovski is an associate editor for Litigation News.

Keywords: sanctions, Model Rules, free speech, First Amendment

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