John Berry, a Kentucky attorney, recently prevailed in a lawsuit which challenged his right to exercise his First Amendment right to free speech. Berry had criticized the Kentucky Legislative Ethics Commission investigation into the alleged fundraising violations by a state senator. Specifically, Berry attended a LEC meeting that eventually went into an executive session. Berry and reporters were not allowed to attend that session. Berry then sent a letter to the LEC members and the public in which he pointed out that this secretive session could cause the public to wonder about how the investigation against the senator was being conducted. The LEC reported Berry’s letter to the Kentucky Bar Association which informed Berry that “by publicly implying that the [LEC] did not conduct its review appropriately,” he violated Kentucky Rule of Professional Conduct 8.2(a), which provides:
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.
The Kentucky Bar Association warned Berry not to lodge similar criticisms in the future. The Bar Association never officially sanctioned Berry. However, Berry still viewed the warning as an infringement on his First Amendment right to free speech. He took the case all the way to the Sixth Circuit Court of Appeals.
The Sixth Circuit agreed with Berry noting that the Bar Association’s warning violated Berry’s freedom of speech and that it created a ‘chilling effect”. The court did not countenance the Bar Association’s argument that Berry’s statement was defamatory because it implied that the LEC illegally excluded the public from the executive session. Berry never expressly stated that the LEC’s actions were illegal. However, even if Berry had said that the LEC’s actions were unlawful, his speech would have to be protected as “contentions that adjudicatory bodies acted illegally are the staple of appellate briefs, and cannot without more constitute ethical violations.”
The Bar Association never disputed that Berry’s description of what occurred at the LEC session was truthful. The rest of Berry’s statement, contained in his letter, consisted of his opinion that the public could conclude that the LEC’s actions showed bias towards the senator under investigation. According to the court, an opinion could only be the basis for sanctions if it could “reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Since Berry’s opinion was delivered in the context of truthful facts which he disclosed in his letter, the public was free to either agree with his conclusion or to reach a different one.
The court, did not, however, accept Berry’s contention that the same standard of defamation that applies to the general public also applies to lawyers. The court noted that lawyers are held to a higher standard, given their profession. The rules of professional conduct were designed to “preserve public confidence in the fairness and impartiality of our system of justice” and that such ethics rules could restrict speech that run-of-the-mill defamation actions could not. Instead of the common law standard for defamation, the court adopted the Ninth Circuit test set out in U.S. v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993):
A court should determine what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” * * * The inquiry focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made.
The court concluded that the application of the ethics rule to Berry’s statements reveals that the Bar Association violated his First Amendment right to free speech.
Even assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The public was free to investigate the Commission’s procedures and draw its own conclusions. The speaker is not required to provide a comprehensive legal analysis to support his every utterance. For these reasons, Rule 8.2(a) was applied unconstitutionally.
Now, attorneys in the Sixth Circuit have clear-cut guidance about what speech by lawyers is protected and what is not. This should come as a welcome relief to legal practitioners in that region.