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In July 2012, the United States Court of Appeals for the Sixth Circuit, in Berry v. Schmitt, ruled in favor of an attorney who publically criticized an ethics commission for its handling of an investigation of Kentucky State Senate President David Williams. 688 F.3d 290, 294 (6th Cir. 2012).  The attorney, John Berry, alleged that his First Amendment Freedom of Speech rights1 were violated when the Kentucky Bar Association issued a warning letter to Berry for his criticism of the ethics commission. See Berry, 688 F.3d at 294.  Berry’s criticism of the Kentucky Legislative Ethics Commission stemmed from a hearing that the Ethics Commission conducted to investigate a fund-raising complaint against Senator Williams. Id.

The Ethics Commission conducted its investigation with Senator Williams present, but it excluded the media, the public, and Berry from the proceedings. Id. at 295. The Ethics Commission subsequently dismissed the complaint against Senator Williams. Id. Berry, in his 2007 letter criticizing the Ethics Commission, wrote that the exclusion of the public from the proceedings was suspicious on its face and that the Ethics Commission’s ruling was contrary to the evidence.2  It was for this letter that Berry was investigated by the Kentucky Bar Association Inquiry Commission for violating Rule 8.2(a).3

The Inquiry Commission voted to issue a warning letter to Berry for his actions but declined to pursue formal discipline.See Berry, 688 F.3d at 295. Berry then filed suit in federal court alleging that Rule 8.2(a) violated his constitutional rights. Id. Berry also asserted that his ability to exercise his right to free speech was chilled by the warning because he wanted to redistribute the letter he wrote criticizing the Ethics Commission, but he feared that he would incur professional discipline for doing so. Id. The district court ruled against Berry, and he appealed. Id. at 295-96.

Standing to Sue and Ripeness

The Sixth Circuit first dealt with in its opinion was the issue of Article III Standing.  Id. at 296.  The court applied a two-prong test from Babbitt v. United Farm Workers Nat’l Union, and concluded that Berry had met both prongs: (1) Berry intended to engage in constitutionally-protected activity, and (2) he reasonably feared prosecution for doing so.  See Berry, 688 F.3d at 296 (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Because Berry wanted to redistribute the same letter criticizing the Ethics Commission for which he had received a warning letter from the Inquiry Commission, he reasonably expected some further form of professional discipline would result. Id.

The court also held that the case was ripe because of “an imminent threat of prosecution.” See Berry, 688 F.3d at 298 (citing Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th Cir. 2008)).

Professional Conduct Rule Unconstitutional

Lastly, the court examined the statement in Berry’s letter criticizing the Ethics Commission that the “deck was stacked” and concluded that it was an opinion protected by the First Amendment.  Id. at 303.  Citing to the Ninth Circuit in Yagman, the Sixth Circuit discussed how First Amendment protections were available for attorneys openly criticizing judges in much more salacious cases.  See Berry, 688 F.3d at 304 (citing Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1434 (9th Cir. 1995).5 Rule 8.2(a) was therefore unconstitutionally applied to Berry in this case, and the district court’s decision was reversed.  See Berry, 688 F.3d at 305. 

In a concurring opinion, Judge Zouhary questioned Berry’s motives for wanting to rehash the letter which Berry had written five years earlier. Id.6 He concluded by stating that even with the law on his side, Berry’s feud with the Kentucky Bar Association was “exaggerated.” See Berry, 688 F.3d at 306 (Zouhary, J., concurring).

Impact of the Ruling in Illinois

Comment 1 of Rule 8.2 distinguishes “honest and candid opinions” from “false statements” made by lawyers.7 As was the case in Yagman, the attorney’s criticism of the judge did not rise to the level of a false statement that diminished the respect of the bench.8 See Yagman, 55 F.3d at 1445.  The same was true in Berry: the attorney was determined by the court to not have made a false statement. See Berry, 688 F.3d at 295.  Berry was instead determined by the court to have given an honest and candid opinion. Id. Overall, the impact of these rulings from the Ninth and Sixth Circuits, respectively, is unclear with respect to the line Illinois attorneys must stay behind when criticizing judges.

In Kentucky, for example, calling a judge a derogatory name is grounds for suspension. See, e.g.,Ky. Bar Ass’n v. Waller, 929 S.W.2d 181, 181-822 (Ky. 1996). In Illinois, the same is true in the Seventh Circuit. See Matter of Palmisano, 70 F.3d 483, 485 (7th Cir. 1995).  In In re Palmisano, an attorney was disbarred under reciprocal disbarment by the Northern District of Illinois for calling judges “crooks” and “dishonest” among other accusations of judicial impropriety.  Id. at 485-486.  However, because Palmisano lacked a factual basis for his statements, they were considered false statements and therefore were grounds for disbarment. Id. at 487 (citing to Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)).

In contrast, the Seventh Circuit in In re Barnett, citing to both Yagman and In Re Palmisano, held that false statements can be the basis for attorney discipline, but that an attorney’s criticism of a judge in a newspaper was not in of itself grounds for such discipline.  In re Barnett, 97 F.3d 181, 184 (7th Cir. 1996).  Berry may not have moved the line for attorneys very far, when it comes to criticizing judges, but the case does show how jagged the line may still be.

*Michael D. Robinson is a Morrissey Scholar and a third-year evening-program law student at The John Marshall Law School.  His Faculty Advisor is Professor Corinne S. Morrissey.
1 The First Amendment states, in pertinent part: “Congress shall make no law . . . abridging the freedom of speech . . . .”  U.S. Const. amend. I. 
2 “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.”  Berry v. Schmitt, 688 F.3d 290, 295 (6th Cir. 2012). 
3 Ky. Rules of Prof’l Conduct R. 8.2(a) 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.”  See also, Model Rules of Prof’l Conduct R. 8.2(a) (1983).
4 The letter stated in part: “This letter is to advise you in the future to conform your conduct to the requirements of the Rules of Professional Conduct.”   Berry, supra note 2, at 295.
5 “Yagman [the attorney] was quoted as saying that Judge Keller ‘has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-semitism.’”  Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1434 (9th Cir. 1995).
6 “At oral argument, Berry’s counsel emphasized that Berry ‘wants to continue to speak in identical or substantially the same language, criticizing the Legislative Ethics Committee’s handling of the preliminary inquiry.’ Really? This matter is old news and will not likely be pursued by Berry, or by anyone else. After all, Berry’s letter is hardly newsworthy.”  Berry, supra note 2, at 305 (Zouhary, J., concurring).
7 Ky. Rules of Prof’l Conduct R. 8.2 Comment 1 provides: “Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.”  See also, Model Rules of Prof’l Conduct R. 8.2 cmt. 1 (1983).
8 “Because Yagman’s statements do not pose a clear and present danger to the proper functioning of the courts, we conclude that the district court erred in sanctioning Yagman for interfering with the administration of justice.”  Yagman, supra note 5, at 1445.