Non Aequitas Est: Do As We Say, Not As We Do...

I found this article most interesting, in that an attorney actually had the nerve to question the ethics of those whose job it is to, themselves, question ethics - and then wound up in hot water over it. Credit goes for this article goes to kentucky.com and the author, John Cheves

Free-speech suit grows from lawyer's criticism of state ethics commission

A First Amendment lawsuit to be decided soon in U.S. District Court in Frankfort might establish whether a respected lawyer broke an ethics rule — risking his law license — by criticizing the state's Legislative Ethics Commission.

"This is a very important case because free speech is, I think, going out of style. The practice now is for someone in authority to say, 'We didn't like what you said, and we're gonna get you for it,'" said Stan Billingsley of Carrollton, a retired state trial judge who has written about the case extensively on his legal blog and in a new book.

Nobody disputes John M. Berry Jr. was entitled to disagree in 2007 when the ethics commission dismissed a complaint against Kentucky Senate President David Williams involving campaign money solicited from Frankfort lobbyists.

The commission ruled Williams' Senate aides innocently erred
by asking lobbyists for up to $50,000 each at a fund-raising luncheon for Senate Republicans. State law forbids lobbyists from giving to state legislative campaigns.

However, Berry — a Henry County lawyer, former state senator and brother of writer Wendell Berry — didn't nurse his disappointment privately. In a letter he sent to ethics commissioners, he said they failed in their duty. Then he went to their next meeting and shared his letter with reporters.

"It is very unlikely that a legislator would ever come before the commission and confess guilt," Berry wrote in his letter. "I do not agree with your conclusion, and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which you are charged to enforce."

Berry's criticism didn't get much publicity that day. But it angered some on the nine-member ethics commission — appointed by the Senate president and House speaker — who thought their integrity had been questioned.

One ethics commissioner, Paul Gudgel, a retired state Court of Appeals chief judge, responded by filing a complaint against Berry two days later with the Kentucky Bar Association. The KBA licenses the state's lawyers and can discipline them with reprimands, fines and disbarment.

"Intentionally impugning the reputation of the commission members without justification to advance his own agenda was improper," Gudgel wrote in a handwritten note to KBA chief bar counsel Linda Gosnell.

Gudgel did not respond to a request for comment last week. The ethics commission's executive director, Anthony Wilhoit, said Gudgel was in Florida and could not be reached easily.

In a deposition in July, Gudgel acknowledged news coverage of Williams' ethics case was a sore point to him. Berry made it worse by "grandstanding," Gudgel said.

"As a matter of fact, I have coffee on a regular basis with a number of lawyers and others involved in the judicial process," Gudgel said in his deposition. "There was a great deal of talk from them to me about articles in the paper over this case — that it was another cover-up — 'You went in the tank again' — that kind of stuff."

In response to Gudgel's concerns, the KBA launched a 15-month professional conduct investigation of Berry. It kept Gudgel apprised of its progress, even sending him Berry's response letters, according to court records.

(Through a KBA spokeswoman, chief bar counsel Gosnell said Friday it is standard operating procedure to keep complainants informed during investigations. Gosnell did not directly respond to calls seeking comment on the case.)

The KBA focused its attention on an ethics rule that states: "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."

Gudgel said Berry made a recklessly false statement in his letter. Berry complained the ethics commission met privately with Williams to hear the case, ordering the public and the watchdog group that filed the complaint, Common Cause of Kentucky, to leave the room.

The closed-door hearing "gave cause for some to speculate that the deck was stacked and the senator would be exonerated," Berry wrote. He immediately added, "I was not, and am not, willing to go that far."

Had Berry read the legislative ethics law before writing his letter, he would have known that it lets the commission hold private hearings with lawmakers accused of wrongdoing, Gudgel said. Therefore, nothing improper was done, and Berry's criticism was recklessly false, Gudgel said.

"Those representations, in my opinion, were both inaccurate and untrue, and misrepresented what actually was going on, which was merely a closed preliminary inquiry consistent with the statute," Gudgel said in his deposition.