Free-speech fight costs Kentucky Bar Association $191,000!

FRANKFORT, Kentucky (PNN) - August 22, 2012 - The Kentucky Bar Association’s violation of the free-speech rights of one of its members has turned out to be costly.

A federal judge has ordered the BAR to pay $191,588 to the attorneys for Henry County lawyer John M. Berry, Jr.

The awarding of attorneys’ fees and costs comes after the Sixth U.S. Circuit Court of Appeals ruled last month that the BAR Association violated Berry’s First Amendment rights when it threatened to sanction an attorney for criticizing the state Legislative Ethics Commission.

The amount doesn’t include what the KBA will have to pay to its own outside lawyers, Stites & Harbison, on the case.

The appeals court held that the BAR Association chilled Berry’s free-speech rights when it warned him he could be punished for challenging the integrity of a ruling dismissing an ethics complaint against Senate President David Williams.

The appeals court said a rule barring lawyers from making reckless or false statements regarding the integrity of judges or legal officers was unconstitutionally applied against Berry because everything he said about the Ethics Commission was true or protected opinion.

The free speech controversy arose after the Legislative Ethics Commission dismissed a complaint that Williams had violated legislative ethics rules in 2007 by asking 40 lobbyists to raise money for Republican candidates at a luncheon at the Muhammad Ali Center.

Berry, a retired state senator who practices in New Castle, wrote a letter to the Ethics Commission in 2007 saying that its findings exonerating Williams were "contrary to the undisputed evidence that was presented” and were suspect because the inquiry was conducted "entirely behind closed doors".

Unhappy with Berry's comments, ethics commission member Paul Gudgel, a retired Court of Appeals judge, brought them to the attention of the BAR Association, which filed a disciplinary complaint against Berry.

The KBA’s inquiry commission dismissed the complaint but said he violated the rule "by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately" and advised him "in the future to conform your conduct to the requirement of the rules of professional conduct."

Berry sued in federal court, alleging that the warning curtailed his right to engage in future criticism of the legislative panel. U.S. District Judge Danny Reeves dismissed the lawsuit, but the appellate panel reversed him.