Berry v. Schmitt – Progress for Lawyer Speech

The Sixth Circuit Opinion in Berry v. Schmitt.

On July 27, 2012, the Sixth Circuit issued an opinion in appeal 11-5456/5515.  Link here:

6th Circuit opinion in Berry v Schmitt

The Sixth Circuit held that Kentucky ethics rule 8.2(a) was unconstitutional as applied to Attorney John M. Berry.

Background on the dispute.

Berry had attended a public session of the Kentucky Legislative Ethics Commission  regarding allegations of fundraising violations by a Senator.  The Commission closed the session to the public, and Berry wrote a letter stating the Commission’s procedures could cause the public to think the “deck was stacked.”

The Commission complained to the Kentucky Bar’s ethics commission, which issued a “warning” letter to Attorney Berry, stating his conduct had violated ethics Rule 8.2(a) because his letter implied that “the Legislative Ethics Commission did not conduct its review appropriately.”

The ethics commission admonished Attorney Berry not to do anything similar in the future (“future speech [that is] substantially similar”) – not even to distribute the same letter again.

Attorney Berry sued in federal court.

Berry sued in federal court, contending Kentucky Rule 8.2(a) was unconstitutional on its face and as applied to him by the Kentucky commission.

The district court granted summary judgment for defendant.

District court reversed by Sixth Circuit Court of Appeals.

The Sixth Circuit, on appeal rejected a Rooker-Feldman analysis precluding federal review.  Commenting on the social policy at issue, the Court stated,

Sometimes [] the state applies the [attorney ethics] rules in a way that impinges on the free interchange of ideas that is vital to self-government.  This is especially problematic when the speech is made by attorneys, who are often the citizens best situated to criticize government.

In analyzing which standard to apply, the Sixth Circuit stated it did not need to reach the question of whether the New York Times v. Sullivan ‘defamation’ standard applied.  (The “defamation” standard requires a showing of actual malice if the statement was about a public official.  Judges are public officials, and actual malice means the speaker knew the statement was false.  The focus is on what the speaker knew or believed, not whether the ordinary person would have believed it.  This is a subjective standard.)

The malice question was not reached, because the speech of lawyer Berry passed muster under a lower standard developed by the Ninth Circuit in 1993.

The language the Sixth Circuit used in getting there is significant:

First, the Opinion included two quotes from prior cases, both important:

  • a lawyer has “a right to engage in speech involving ‘governmental affairs’ and ‘the manner in which government is operated or should be operated, and all such matters relating to political processes’ under Mills v. State of Alabama, 384 U.S. 214, 218–19 (1966)”; and
  • “[j]udges should hesitate to insulate themselves from the slings and arrows that they insist other public officials face,” Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995)….”

It is important to remember these maxims as we consider lawyer speech.

The Opinion continued,

The ethics rules do not compensate judges or insulate [them] from offensive or unpleasant criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice.

This is an interesting proclamation, which I’ll analyze below.  After stating this “difference,” the Opinion did not analyze it.  Instead, the Sixth Circuit reversed the federal district court, finding that Kentucky ethics rule 8.2(a) had been applied in an unconstitutional manner to Berry’s speech.

The Court applied the Ninth Circuit Yagman standard (“what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstance”).  It’s important to note that this is not a pure “objective” standard.  Although the word ‘reasonable’ is included, the focus is on the attorney’s point of view.

Notwithstanding the New-York-Times-malice issue, the Sixth Circuit does require that other aspects of First Amendment law developed in the context of defamation cases, be analyzed.

In doing so, the Sixth Circuit gets us to focus on the first part of defamation analysis, rather than awaiting a fact-finding hearing, when one is often not necessary.

These analytical precepts are par for the course in a defamation summary judgment analysis; they are laid out in our Eighth Circuit’s Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir.1986) (en banc), cert. denied, 479 U.S. 883 (1986).  These analytical points include:

  1. Have the precise words been plead?
  2. Is the statement one of fact, or opinion?
  3. Can the complainant show the statement is false?
  4. Is the statement defamatory (or in the parlance of 8.2(a), does it impugn integrity)?
  5. Was the statement privileged?

And if all the complainant can navigate through all of those, is the statement true?  (Truth is an absolute defense).

After acknowledging the speech was political, the Sixth Circuit Opinion pointedly evaluated whether the speech was fact or opinion.  The Sixth Circuit acknowledges (as did the Janklow case), that opinion is protected.

The Sixth Circuit Opinion specifically stated,

an attorney’s “statements about the integrity of a judge cannot be punished unless they are capable of being proven true or false” (citing to Yagman).

Holding that Attorney Berry’s statements were mixed fact and opinion, the Opinion nonetheless held that, “conveying the public’s belief that ‘the deck was stacked’ is opinion protected by the First Amendment.”

The Sixth Circuit went on to comment that alleging illegality by a tribunal is the staple of appellate briefs.

Finally, the Opinion reminds us that an attorney cannot be punished for advocating a change in the law.

We seek progress, not perfection.

There is an adage common in the program of Alcoholic Anonymous, we seek progress not perfection.  Although I have some issues with the Sixth Circuit Opinion, it shows great progress in the area of attorney speech, and in particular, expand what lawyers can say about a tribunal.

The Sixth Circuit’s Opinion includes points I have been making on this blog, such as:

1.           A system of self-government works when the citizenry is free to criticize how government has acted, or to say how it could be done better.  This point shows the importance the First Amendment plays in preserving our democracy.

2.           Lawyers are important as speakers, they are often in the best position to articulate the criticisms of judges.  We need to protect lawyer speech critical of government, and in particular criticism of judges.  Lawyers are in a unique position to observe judicial conduct, and they are trained to articulate the problems vis a vis the law.

3.           Nearly every appellate brief argues that the district court acted illegally (contrary to law).  Our appellate system is founded on the notion that a party must challenge the legality of a judge’s order.  Why, then, would we be so hard on lawyers who suggest that a judge did not follow the law, or did something illegal, or that the process was not fair?  That should be treated as usual fodder.

The Sixth Circuit specifically used the term “illegal” when discussing appellate briefs.  I have been publicly charged for alleging illegality by Judge Wieland – in a federal district court complaint.  I have pointed out taht that is what lawyers should be doing in a complaint.  This Opinion shows why that charge makes no sense.

Recommended reading.

This is one of those Opinions I wish every judge would read.   It’s a sign of the changing times.

I am aware of the Yagman opinion, and I know Gentile.  But they are both early 90’s (two decades ago), and much has occurred in the judicial reform movement since then.

But using the ‘reasonable lawyer’ standard from Yagman is still progress.  Instead of permitting judges to evaluate what is objective from their point of view, the emphasis is on what a lawyer should do, given professional obligations.

The “lower standard” did not harm Attorney Berry, he won even under the lower standard.  It’s quite possible the Sixth Circuit was suggesting that the debate has been focusing in the wrong area:  if the speech is protected, we never need to reach the issue of malice.

Focusing on factual support wastes resources.

Since 2006, I have tried to get the Minnesota OLPR to consider some of these points.  The charges did not focus on my precise words, I argued, and they were taken out of context.  And, I noted that some of my comments were opinion, and therefore protected.

I was blown off.  All Craig Klausing wanted to do was to focus on ‘factual basis.’  This puts the cart before the horse.

That caused an unnecessary PC hearing, and, because there was no finding of fact in that process, forced a public proceeding.  My reputation, my business suffered, because of that pubic proceeding.  And it was completely unnecessary (for this and other reasons).

Defamation precepts are important.

Although the malice standard was deemed immaterial to the Berry analysis, the Sixth Circuit acknowledged the impact of the First Amendment on defamation law.  No lawyer should be put through 6 years of investigation (like I was) or admonished and enjoined (like Berry was) if the government cannot be bothered to read the law to determine whether the speech is protected – and therefore not subject to any litigation.

Government officials who are sued get an early review of whether their conduct is “immune.”  The protections of the First Amendment should not receive anything less.

It has been 6 years now, and I have not been able to get anyone to consider that the case against me under 8.2(a) should never have been started.  And believe me, I have tried.

‘Reasonableness’ still a risky proposition.

I think we can do better than the 1990’s-era Yagman-formulated standard.  It’s good to focus on the lawyer’s point of view, and I agree that the lawyer’s obligations must be considered.  After all, our first duty is to our client, and if it’s necessary to bring a motion that challenges a judge’s integrity in order zealously to represent the client, that should be our highest duty.  But the ‘reasonableness’ standard still troubles me.

I must confess that my personal experience informs my opinion.

I have had an atypical career.  My cases have included numerous items of evidence about judicial conduct, and that evidence has informed my viewpoint.  Reasonableness tends to imply typical, and my experience has been uncharacteristic.

Further, as I see it, one of the biggest problems is that the ‘typical’ attorney is scared.  For reasons discussed on this blog, they fear making any negative statement about a judge; some of them would rather risk harming the client, than incur the risks that come when a lawyer communicates negative comments about a judge.

The ‘reasonable attorney’ standard does not get at that problem.

Berry’s win helps.

However, the Sixth Circuit opinion itself, does help.  Hopefully, attorneys will be less afraid to speak, in light of the win for Berry.

Berry won because it’s not only ok to criticize government, it’s vital.   Self-government doesn’t work unless the citizenry is free to criticize what government has done, or to suggest a better way.

Berry won because his speech was political, and because opinion is protected.

That should help.

It is most important to note that Berry’s phrase the ‘deck was stacked,’ was opinion.  In my experience, when the public says it wants judicial reform, it means it wants to put a stop to behind-the-scenes communications, deals and case-fixing.  And yet, in the past, when attorneys have even breathed the possibility of that, they have too often faced ethics charges.  (See my discussion of In re Graham, here).

After the Berry case, lawyers know they can imply (or even state) unfairness, bias, that the ‘desk was stacked.’

And that, in turn, will help to reform our system.

It’s a good thing that Berry pursued this issue.  Lawyers nationwide should thank him.  Each time a lawyer is brave enough to break the code of silence in our community, we all grow a bit.

Of course, lawyers need to be responsible with their speech.  But the rules that require lawyers to perform a reasonable investigation of the facts and law before making an argument in court, must be equally enforced (against public attorneys, and yes, against the ethics police) before we should consider suppressing lawyer speech.  I

Viewpoint matters.

I must close by parsing the Sixth Circuit statements that the defamation tort was created to compensate private individuals and, “[t]he ethics rules do not compensate judges or insulate [them] from offensive or unpleasant criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice.”

In my view, it’s risky to assume that all judges select the disciplinary process over a defamation lawsuit because they want to protect the public’s confidence in the justice system.  Too often, judges select the insider-controlled ethics process because:  a) they get system insiders who are pro-judge to go after the lawyer, and the lawyer gets no jury; and b) the judge avoids real discovery, which could allow the lawyer to prove the truth of the statement.

These all favor a win for the judge despite the facts and the law – what happened at the Kentucky commission is a great example of this.  It would be hard to find an American on the street who thinks Berry’s license should be threatened because he allegedly implied the legislative commission “did not conduct its review appropriately.” But the system insiders said exactly that.  The system insiders protected government, protected an “image” of judicial decision-making over reality, and gagged lawyer speech.

In my opinion, based on my experience, that is what judge-complainants want when they go after lawyers with the ethics police.  (Read other posts on this blog regarding my experience.)

And although I agree that defamation lawsuits and disciplinary matters are not identical, when it comes to criticizing judges as elected or public officials, they should be.  Let’s face it, the old way does not work.  It has caused lawyers to fear for their license if they ever criticize a judge.

And the ‘old way’ doesn’t work because it permits judges to cover up their own misconduct by attacking the lawyer using the insider-controlled system.

In my view, if a judge thinks s/he has been defamed, s/he should be forced to sue in open court for defamation, to ensure real discovery, and a jury of the lawyer’s peers, not system insiders.

Regardless of the overall reason we have ethics rules for attorneys, tt does not protect the public to cover up judicial misconduct, or to make lawyers too afraid to report it.

Let the public decide what enhances our confidence.

That leads us to my final point:  what protects the public’s confidence in the justice system?

In my view, confidence is enhanced by showing that judges will be held accountable for their conduct.

I am against the notion that perception is more important than reality.  I abhor the concept that the public should be fooled when they could be told the truth.

In this system of self-governance, the public must first know what is happening.  Only then can we intelligently comment on how we want our government to work.

               Let’s start the ugly phase now so we can get through it.

For a while, it might be ugly.  As we expose bad conduct of judges, we might, for a time, resemble the Catholic Church.  It may come out that certain types of misconduct (like fixing cases) have been going on for years, and that rather than dealing with those problems, those who complained have been ostracized, while those who did wrong were protected.

But emerge it must, if we are ever to get past this stage and move into a healthier one.

A fair and impartial system is indeed the goal.  But it should never be forgotten that we, the public, are the reason for the goal.   It’s supposed to be about us.  In this system of self-governance, we need to have a voice in what is best for us.

We as a society falter and fail if a small group of people are permitted to control the data, control the image, control the perception of the courts.

When it comes to determining what will enhance the public’s confidence, I don’t want a system-insider making the decision.  Until there is some method for listening to the public about what it wants, this standard will fail.

P.S.  The concurrence deserves a brief mention.  Judge Zouhary joined in the result but wrote separately to be able to say, “this case is more about stubborn Berry having the last word….”

This made me laugh.  Imagine if a lawyer had said that a judge was “stubborn.”   What do you think would have happened to the lawyer?  This feels tit for tat (you criticize a tribunal you will not get away without being criticized).  And, as it turns out, it was Judge Zouhary who got the “last word.”