In Berry v Schmitt, the Sixth Circuit held that the Kentucky Bar Association (“KBA”) could not use Kentucky Rule of Professional Conduct 8.2(a) to bar an attorney, John Berry, from commenting on the Kentucky Legislative Ethics Commission investigation of Senate President David Williams.  Senator Williams was investigated for alleged fund-raising violations.  Berry attended the public session of the investigation, but was closed out—along with the rest of the public attendees.  Only Senator Williams himself was allowed to stay.  Troubled by the Commission’s decision to block out the public at the public session while permitting Senator Williams to remain, Berry wrote a letter to the Commission and disseminated it to the public and the media.  In the letter, Berry wrote, “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.”

The KBA sent a warning letter to Berry under Rule 8.2(a).  Rule 8.2(a) provides that “[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.”  The letter stated that it was issued to “advise you in the future to conform your conduct to the requirements of the Rules of Professional Conduct.”  Berry filed for an injunction and declaratory judgment that he intended to further criticize the Commission’s investigation and KBA’s invocation of Rule 8.2(a) unconstitutionally restricted that speech.

The Sixth Circuit agreed.  Finding that Berry had standing and his suit was ripe, the Court turned to KBA’s argument that the Rooker-Feldman Doctrine barred Berry’s claim.  The Rooker-Feldman doctrine “bars lower federal courts from conducting appellate review of final state-court judgments because 28 U.S.C. § 1257 vests sole jurisdiction to review such claims in the Supreme Court.”  The Sixth Circuit rejected the application of Rooker-Feldman, holding that even though the warning letter is in fact a state court judgment, the letter is not the source of Berry’s injury.  The doctrine only applies where the injury alleged was caused by the state court judgment and seeks review of the judgment itself.  Here, “Berry seeks declaratory and injunctive relief to prevent future enforcement by the KBA, the threat of which currently chilling his speech.”  Berry did not seek to expunge the letter, nor would the order he does seek have that effect.

The Sixth Circuit did, however, hold that ethics rules can permissibly reach speech that defamation suits cannot.  Therefore, the Court reasoned, the more appropriate test might be broader than the seminal New York Times standard.  The Court noted that this standard would likely follow the one articulated by the Ninth Circuit:  “what the reasonable attorney, considered in light of all of 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.”  Berry disclosed the facts supporting his opinion, all of which were true and non-defamatory, and thus not sanctionable under the Ninth Circuit test or the narrower New York Times standard.  Therefore, the Sixth Circuit—while declining to adopt a test for future cases—held KBA unconstitutionally applied 8.2(a) to restrict Berry’s free speech.