Petition — Heleringer v. Kentucky Bar Ass'n

Lee Rs

| Supreme Court, U. S.

FILEO

NOY 9 1980

80-730

MICHAEL RODAK, JR., CLER

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

ROBERT L. HELERINGER ..............00006- Petitioner

versus

KENTUCKY BAR ASSOCIATION............ Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

PETITION FOR WRIT OF CERTIORARI

FRANK E. HADDAD, UR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 583-4881

CO-COUNSEL FOR PETITIONER

Samuel Manly

3260 First National Tower

Louisville, Kentucky 40202

(502) 585-4619

COUNSEL FOR PETITIONER

¢*%

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

ROBERT L. HELERINGER.............. ee eeee Petitioner

versus

KENTUCKY BAR ASSOCIATION ........... Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

PETITION FOR WRIT OF CERTIORARI

QUESTION PRESENTED FOR REVIEW

May an attorney be subjected to bar disciplinary sanctions by

reason of his having exercised his First Amendment freedom of

expression by making a public statement, out of Court, that a

State Court judge’s action in granting an ex parte restraining

order in the absence of any showing of immediate injury, harm or

damage to the moving party, was “highly unethical and grossly

unfair” ?

PARTIES TO PROCEEDING IN SUPREME COURT OF

KENTUCKY

The only parties to the bar disciplinary proceeding in the

supreme Court of Kentucky were Kentucky Bar Association,

denominated as “complainant” and Robert L. Heleringer, peti-

tion herein, denominated as “respondent”.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............. l

PARTIES TO PROCEEDING IN

SUPRME COURT OF KENTUCKY................. |

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PAE PAGE IRE TEES 6.6.3 bbs bos i derdeecccteceuc 2

OFFICIAL AND UNOFFICIAL REPORTS............ 3

STATEMENT OF GROUNDS OF JURISDICTION..... 3

CONSTITUTIONAL PROVISIONS, STATUTES

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TABLE OF AUTHORITIES

Page

Constitution of the United States, Amendment I1.......... 10

Ashton v. Kentucky, 348 U.S. 195 (1966) ..........00008. 10

Be NE SO OL. GEE CESSE) nc cic chic cccccceccccetone 10

Konigsberg v. State Bar of California, 352 U.S. 252 (1957) . 10

3

OFFICIAL AND UNOFFICIAL REPORTS

The only report of the decision of the Kentucky Supreme

Court is Kentucky Bar Association v. Heleringer, Ky., 602

S.W.2d 165 (1980).

STATEMENT OF GROUNDS OF JURISDICTION

The opinion of the Supreme Court of Kentucky was rendered

on July 15, 1980, but that opinion did not constitute an order or

judgment. The mandate of the Supreme Court, which made

effective the opinion of the Court and which is the only order or

judgment of the Supreme Court of Kentucky in this case, was

entered and issued on August 5, 1980.

No orders respecting rehearing and no orders granting or

denying any extensions of time within which to petition for

certiorari have been sought or entered.

This Court has jurisdiction to review the judgment in ques-

tion by writ of certiorari by virtue of the provisions of Title 28,

United States Code, Sections 1257 (3) and 2101 (c).

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS

The only federal constitutional provision involved herein is

the First Amendment to the Constitution of the United States,

made applicable to the States by the Fourteenth Amendment to

the Constitution of the United States, and which reads in its

entirety as follows:

Congress shall make no law respecting an establishment

of religion or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and petition

the government for a redress of grievances.

Section 116 of the Constitution of the Commonwealth of Ken-

tucky provides that: .

The Supreme Court shall have the power to prescribe

rules governing its appellate jurisdiction, rules for the

appointment of commissioners and other court per-

sonnel, and rules of practice and procedure for the

Court of Justice. The Supreme Court shall, by rule,

govern admission to the bar and the discripline of

members of the bar.

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The Supreme Court of Kentucky has promulgated rules

(cited as “SCR”) governing the practice of law, the organization

atid government of the bar and procedure in disciplinary cases.

Relevant provisions of SCR 3 are as follows:

SCR 3.070 The Board [of Governors] is the governing

body of the [Kentucky Bar] Association and the agent

of the Court for the purpose of administering and

enforcing the Rules. It shall consist of the President,

the President-Elect, the Vice-President, the Chairman

of the House of Delegates, the Chairman-Elect, the

immediate Past President, the Chairman of the Young

Lawyers Section, who is a non-voting member, and

two attorneys elected from the membership of the

Association in each appellate district of the State as

presently existing or hereafter created.

SCR 3.130 Except for Ethical Considerations and Dis-

ciplinary Rules insofar as they conflict with the opinion

in the United States Supreme Court in Bates v. State

Bar of Arizona, the Court recognizes and accepts the

principles embodied in the American Bar Association’s

Code of Professional Responsibility as a sound state-

ment of the standards of professional conduct required

of members of the bar, and the board may cause to

be tried all charges brought under this Code as well as

charges for other unprofessional or unethical conduct

tending to bring the bench and bar into disrepute.

SCR 3.380 Upon finding by the Board or Court under

the provisions of Rule 3.370 of guilt or unprofessional

conduct, discipline may be administered by way of

admonition, private reprimand, public reprimand,

censure, suspension from practice or disbarment. If a

private reprimand is issued, it shall not be made public

and shall be transmitted only to the respondent, or his

attorney and to the attorney for the complainant, and

the Court shall order the record sealed subject to re-

opening only on order of the Court.

SCR 3.440 The provisions of the Rules [of Civil Proce-

dure] regarding petition for rehearing and issuance ofa

mandate shall apply. The Clerk shall promptly furnisha

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copy of the order of disposition to all parties and the

Director [of the Kentucky Bar Association]. Every

final order or opinion except those for private repri-

mand, shall be published as are other opinions of the

Court.

Rule 65.03 of the Kentucky Rules of Civil Procedure, dealing

with restraining orders, reads in relevant part as follows:

A restraining order may be granted at the commence-

ment of an action, or during the pendency thereof,

without notice, if it is clearly shown by verified com-

plaint or affidavit that the applicant’s rights are being

or will be violated by the adverse party and the appli-

cant will suffer immediate and irreparable injury, loss

or damage before notice can be served and a hearing

had thereon.

The relevant disciplinary rules set out in the American Bar

Association’s Code of Professional Responsibility and relied on

by the Kentucky Supreme Court are DR 1-102 (A) (5) and DR

8-102 (B), which read, respectively, as follows:

DR 1-102 (A) (5) A lawyer shall not engage in conduct

that is prejudicial to the administration of justice.

DR 8-102 (B) A lawyer shall not knowingly make false

accusations against a judge or other adjudicatory

officer.

STATEMENT OF THE CASE

In 1978, the governing body of Jefferson county, Kentucky,

enacted an ordinance regulating certain matters concerning the

performance of abortions in Jefferson County, Kentucky. Peti-

tioner, who is a member of Kentucky's integrated bar, and is an

elected member of the Kentucky General Assembly, participated

substantially in the drafting of the ordinance in question. Peti-

tioner is a Roman Catholic, a member of the Right to Life

movement and is vigorously opposed for religious and moral

reasons to the performance of abortions.

Following the enactment of the ordinance, which was not to

take effect until January |, 1979, a proceeding was commenced in

the Circuit Court of Jefferson County, Kentucky, by a medical

doctor whose practice consists mainly in the performance of

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abortions, seeking to enjoin the government of Jefferson County,

Kentucky from enforcing the ordinance. The case was assigned to

Honorable Benjamin F. Shobe, who scheduled a hearing on the

plaintiff's motion for a restraining order for 1:00 P.M., on

December 19, 1978. Under Kentucky's Rules of Civil Procedure,

a restraining order may be granted only if it is:

*** clearly shown by verified complaint or affidavit

that the applicant’s rights are being or will be violated

by the adverse party and the applicant will suffer

immediate and irreparable injury, loss or damage

before notice can be seved and a hearing had thereon.

The interests of Jefferson County, Kentucky were to be

represented by the Office of the Jefferson County Attorney and,

in particular, by one Edward L. Schoenbaechler, Assistant

County Attorney. At approximately 12:50 P.M., on December

19, 1978, ten minutes before the hearing was scheduled to com-

mence, Schoenbaechler informed Judge Shobe that he was

engaged in the trial of a criminal case in another Court located in

the same building, requested Judge Shobe to postpone the hear-

ing, whereupon Judge Shobe stated, “That's no problem. We'll

wait for you.”

Thereupon, in the absence of Assistant County Attorney

Schoenbaechler and in the absence of any other attorney repre-

senting the interests of the government of Jefferson County, Ken-

tucky, the Court proceded to take up the plaintiff's motion for a

restraining order against the enforcement of the abortion control

ordinance, which was not scheduled to take legal effect for

another thirteen days. No effort was made by Judge Shobe, who

had available to him one or more bailiffs, to procure Assistant

County Attorney Schoenbaechler’s presence at the hearing, nor

was any other effort of any kind made to notify the Office of the

County Attorney that the hearing was about to take place. The

courtroom was well-attended by members of the news media,

including photographers and television camera operators with

television cameras. |

Petitioner thereupon left the courtroom to attempt to find

Schoenbaechler. When Petitioner and Schoenbaechler returned

to the Court, they discovered that Judge Shobe had, at 1:54 P.M..,

issued a restraining order against the County’s enforcement of the

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ordinance, which, as noted above, would not in any event take

effect until January 1, 1979, thirteen days later.

At a press conference held the next day by Right to Life of

Louisville,. Inc., petitioner publicly stated that the refusal of

Judge Shobe to defer ruling on the plaintiff's motion for a res-

training order or to procure the attendance of a representative of

the Office of the Jefferson County Attorney was “highly unethical

and grossly unfair.” His comments were reported in the news

media. Thereafter, Judge Shobe filed a complaint with the Direc-

tor of the Kentucky Bar Association, charging the petitioner with

unethical and unprofessional conduct and with conduct tending

to bring the bench and bar into disrepute. His charge was based

solely on the petitioner’s having publicly stated that Judge

Shobe’s conduct of the hearing on December 19, 1978 was “highly

unethical and grossly unfair.”

The Director of the Kentucky Bar Association notified the peti-

tioner that a complaint had been filed against him, and advised

the petitioner that he had fifteen days to answer.

Within the allotted fifteen days, petitioner answered the com-

plaint under oath, admitting that he uttered the words in ques-

tion, denying that he “called a press conference” as Judge Shobe

accused him of and asserting his First Amendment privilege of

freedom of expression as a defense.

On August 9, 1979, the Inquiry Tribunal of the Kentucky Bar

Association filed a disciplinary charge against the petitioner, to

the effect that his attendance at a press conference, whereat he

stated that Judge Shobe’s actions were “highly unethical and

grossly unfair”, constituted “...unethical and unprofessional con-

duct tending to bring the bench and bar into disrepute” and

recommended that an appropriate degree of discipline be admin-

istered to the petitioner.

The petitioner moved the Kentucky Bar Association for a more

definite statement. The Kentucky Bar Association responded by

Stating, (i) that disciplinary proceedings are not adversary in

nature, that rather are fact finding inquiries into what may have

constituted unethical or unprofessional conduct; (ii) the peti-

tioner may be charged with any violation of the American Bar

Association Code of Professional Responsibility, as well as any

other conduct tending to bring the bench and bar into disrepute;

and (iii) the charge includes, but is not limited to, violations of

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DR 1I-102 (A) (6) and 8-102 (B), as amplified by ethical considera-

tions 8-6, 9-2 and 9-6 of the American Bar Association Code of

Professional Responsibility.

The petitioner then answered the Bar complaint, by admitting

that he uttered the words in question, again invoking his First

Amendment privilege and denying that his conduct was either

unethical or unprofessional.

A “trial hearing” was held before a Trial Commissioner appointed

by the Chairman of the House of Delegates of the Kentucky Bar

Association on November 28, 1979. The Trial Commissioner

specifically found there was no urgency for a decision by Judge

Shobe on December 19, 1978, on the plaintiff's motion for a

restraining order, since there was additional time to hold a hear-

ing prior to the effective date of the order.

The Board of Governors of the Kentucky Bar Association found

the petitioner guilty as charged, filed its report with the Clerk of

the Supreme Court of Kentucky, and recommended that the

petitioner be publicly reprimanded.

The petitioner requested the Supreme Court of Kentucky to

review the action of the Board of Governors. On July 15, 1980, the

Supreme Court of Kentucky rer tered its opinion finding that the

petitioner was guilty of “unet. al and unprofessional conduct

which tended to bring the bench and bar into disrepute.” That

finding was based on petitioner’s having exercised his right of

expression by characterizing Judge Shobe’s actions, described

above as “highly unethical and grossly unfair.” On August 5,

1980, the Supreme Court of Kentucky entered and issued its

mandate, in the form of an order of public reprimand of the

petitioner.

The petitioner raised the defense that he was being punished for

his having exercised his freedom of expression under the First

Amendment to the Constitution of the United States at all stages

of the proceedings against him, namely:

1. Petitioner's sworn response to Judge Shobe'’s complaint, at

p.3, where petitioner stated:

In conclusion, I would endorse the Supreme Court's ad-

monition in the Konigsberg case:

“A bar composed of lawyers of good moral

character is a worthy objective but it is unnecessary

9

to sacrifice vital freedoms in order to obtain that

goal. It is also important both to society and the

bar itself that lawyers be unintimidated — free to

think, speak, and act as members of an Independent

Bar.”

Konigsberg v. State Bar, 353 U.S. 252, at 273

(1957).

2. Petitioner's answer to the charge made by the Kentucky Bar

Association Inquiry Tribunal, where petitioner stated:

3. DR 8-102(B) is a much more relevant charge, but it

too is baseless. My criticisms of Judge Shobe’s conduct

were not “false accusations,” but legitimate criticism of

his actions. “Courts are not, and should not be,

immune to such criticism.”

Konigsberg v. State Bar of California, 353 U.S. 252, at

269 (1957).

4. In addition, I restate and reaffirm, in its entirety my

original answer to Judge Shobe’s original complaint,

filed with the Complainant on or about January 24,

1979, a copy of which is attached hereto.

3. Petitioner’s brief filed February 11, 1980, addressed to the

Board of Governors of the Kentucky Bar Association, at p.5,

where petitioner's counsel stated:

The Supreme Court of the United States in Ashton v.

Kentucky, 384 U.S. 195 ... has specifically held that no

organization under the guise of regulation may prohibit

the use of any word in our society unless it is obscene.

Mr. Heleringer as a citizen of the United States was

quoted in the free press as using the word “unethical.”

The vague and totally undefined “charge” of “tending

to bring the bench and bar of Kentucky into disrepute”

is Constitutionally void.

4. In his “Notice for Review and Brief of Respondent” filed with

the Kentucky Supreme Court, at pp.2, 3, 4, 6, 7, and 8, counsel for

the petitioner squarely argued that petitioner should not be pun-

ished for exercising his First Amendment right of freedom of

expression, citing First Amendment principles as enunciated in

Askton v. Kentucky, 348 U.S. 195 (1966); Glasson v. City of

Louisville, 518 F.2d 899 (6th Cir. 1975); Re Sawyer, 360 U.S. 622

vy

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(1959); and otherwise alluding to the principles of freedom of

speech and expression.

The Board of Governors of the Kentucky Bar Association, in its

opinion filed on March 25, 1980, rejected the petitioner's First

Amendment defense, holding the speech in question not to be

protected as against the State's interest in maintaining the respect

of the public for its judiciary [Opinion of the Board of Governors,

at p.4], and on the grounds that attorneys must maintain the

respect due to the Courts of Justice and to judicial officers [Opin-

ion of the Board of Governors, p.6].

The Supreme Court of Kentucky also rejected petitioner’s First

Amendment defense, holding (i) that while an attorney has the

right to criticize the Courts and their decisions, charges of unethi-

cal conduct must be made only in good faith supported by sub-

stantial competent evidence and (ii) that such charges should only

be made to Kentucky's Judicial Retirement and Removal Com-

mission. See Kentucky Bar Association v. Heleringer, Ky., 602

S.W.2d 165, at 168 (1980).

ARGUMENT

The writ of certiorari should be granted because the Kentucky

Supreme Court, in Kentucky Bar Association v. Heleringer, Ky.,

602 S.W.2d 165 (1980), decided an important question of federal

law ina way in conflict with applicable decisions of this Court. Re

Sawyer, 360 U.S. 622 (1959); Ashton v. Kentucky, 348 U.S. 195

(1966); Konigsberg v. State Bar of California, 353 U.S. 252 (1957).

This Court has not addressed the First Amendment rights of

attorneys since Re Sawyer, supra; nor has the Court recently — if

ever — clearly determined whether an attorney should be treated

differently from any other citizen in respect of free out-of-court

expression concerning the competence, ethics or integrity of

members of the judiciary.

This case presents an excellent factual setting within which this

Court should make clear that good faith out-of-court criticism by

an attorney, who is also an elected meinber of a State’s General

Assembly, of a member of the judiciary is protected speech, and

cannot be the subject of Bar disciplinary action.

The factual record clearly reveals that under the provisions of

Kentucky Rule of Civil Procedure 65.03, Judge Shobe should not

have issued the restraining order in question on December 19,

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1978, in the absence of the attorney for Jefferson County, Ken-

tucky, because there could be no possible showing of great,

immediate or irreparable injury, harm or damage to the applicant

before notice could be served or a hearing held. Such is the case

because the ordinance the enforcement of which was sought to be

restrained would not take legal effect until January 1, 1979,

thirteen days later, thus affording ample time for an orderly

hearing to be conducted at which the County’s interests could be

represented and its arguments advanced. Petitioner’s criticism of

Judge Shobe’s overall conduct of the hearing held on December

19, 1978, was warranted, was made in good faith and was backed

by substantial evidence.

CONCLUSION

For the foregoing reasons, the petitioner prays the Court to issue

its writ of certiorari, directed to the Supreme Court of Kentucky;

and, upon review of the record below, after appropriate briefing

and argument, to reverse the judgment of the Supreme Court of

Kentucky which publically reprimanded the petitioner for his

lawful and proper exercise of his First Amendment right of

freedom of expression.

Respectfully submitted,

Samuel Manly

3260 First National Tower

Louisville, Kentucky 40202

(502) 585-4619

COUNSEL FOR PETITIONER

APPENDIX

TABLE OF CONTENTS

OF APPENDIX

Per Curiam Opinion of Supreme Court

of Kentucky, rendered July 15, 1980 .............4.- A—l

Opinion and Recommendation of Board

of Governors of Kentucky Bar

Association, with minutes and

certification, filed March 24, 1980 ............00005: A—7

Charge of Inquiry Tribunal, filed

PN TA Boca vsietdeb Us cpus dccuccccscsccceten A-13

Mandate of Supreme Court of Kentucky

issued and filed August 5, 1980............00eeeeeee A-I5

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RENDERED: July 15, 1980

To Be Published

SUPREME COURT OF KENTUCKY

80 SC 188 KB

KENTUCKY BAR ASSOCIATION ..... COMPLAINANT

V. IN SUPREME COURT

ROBERT UL. HELERINGER ............. RESPONDENT

PER CURIAM

The Board of Governors of the Kentucky Bar Association

concluded that the Respondent’s statements at a press conference

served to undermine public confidence in the integrity of the

judicial process and tended to bring the bench and bar into

disrepute. The Board found him guilty of unprofessional conduct

as charged and recommended a public reprimand. The Respond-

ent claims that his comments have the protection of the first

amendement and has sought review of the board’s findings and

recommendation. We hold that Respondent’s comments made in

their context were not speech immune from professional

discipline.

This professional misconduct arose out of the events sur-

rounding litigation to determine the constitutionality of an abor-

tion regulation ordinance passed by the Jefferson Fiscal Court,

the substance of which Respondent drafted and venemently sup-

ported. A hearing on a Restraining Order to prohibit the

enforcement of the ordinance was scheduled for 1:00 p.m.

December 19, 1978 before Judge Shobe of the Jefferson Circuit

Court. The court had recessed a criminal trial until 1:30 p.m. that

day in order to accommodate the hearing. At approximately

12:50 p.m. the assistant county attorney who was to argue against

the restraining order on behalf of the fiscal court came to the

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judge’s chambers and requested a short delay of the hearing

because he was involved in a proceeding in the Jeffrson District

Court being held in another part of the building. The court

acquiesced.

At 1:30 p.m. court was opened, but the assistant county

attorney was not present. The Respondent tendered a motion to

intervene in the proceeding on behalf of Right to Life of Louis-

ville, Inc., which the court acknowledged but did not order filed,

indicating that he was inclined to overrule the motion at a later

date. The court proceeded to hear the motion for a restraining

order ex parte while Respondent sought out the assistant county

attorney. Upon arriving in the circuit court, they found the hear-

ing had been concluded and the restraining order entered at 1:54

p.m.

The following day Right to Life of Louisville, Inc., of which

‘ Respondent is a director, called a press conference which was

heavily attended by the local media. According to the trial com-

missioner’s findings, the atmosphere was “highly emotional.”

During the press conference, Respondent called the refusal of

Judge Shobe to wait longer for or to seek out the assistant county

attorney “highly unethical and grossly unfair.” This remark is the

the basis for this disciplinary action.

At the outset we note that there is no question as to the

content of the statement. Indeed, Respondent defended the sub-

stance of the remarks in a reply to the Bar Association stating, “1

did indeed describe Judge Shobe’s actions that day as unethical

and unfair. Let there be no doubt that I absolutely stand by the

merits of that evaluation and will, under no circumstances, retract

them.”

This court “recognizes and accepts the principles embodied in

the American Bar Association Code of Prof-ssional Responsibil-

ity as a sound statement of the standards of professional conduct

required of members of the bar, ....” SCR 3.130. DR 1-102(A) (5)

directs “A lawyer shall not engage in conduct that is prejudicial to

the administration of justice.” DR 8-102(B) states “A lawyer shall

not knowingly make false accusatians against a judge or other

adjudicatory officer.”

CR 65.03 permits restraining orders to be issued “without

notice” on an ex parte basis. As a member of the practicing bar

me.

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Kespondent knew, or should have known, that an ex parte dispo-

sition of the application for a restraining order was proper at the

time he participated in the press conference. On the other hand,

the general lay public would not have been aware that a restraining

order could be issued without an adversary hearing. Respond-

ent’s assertion at the highly charged press conference raised the

specter of a judicial officer being in complicity with the opponents

of the ordinance, of one who abused the awesome power of

injunctive relief. While we neither approve nor condemn the

court’s decision to proceed ex part. in a politically sensitive

hearing, his conduct was not “highly unethical and grossly unfair”

as Respondent charged during the press conference. The court

acted within the discretion given by the Civil Rules.

The precedent of Kentucky Bar Association v. Nall, Ky., ___

S.W. 2d (April 22, 1980) would ordinarily require us to

decide this case against the Respondent at this point. However, he

asserts that his comments cannot be the basis for disciplinary

action against him because it should be considered protected

speech under the first amendment. This point requires a delicate

balancing of the interests in upholding the integrity of our judicial

system and in protecting an attorney’s right to free expression.

The United States Supreme Court has addressed this issue

generally in the case of In re Sawyer, 360 U.S. 622, 3 L. E. 2d 1743,

79 S. Ct. 1376 (1959). There the court in a five to four decision

evaluated the record and held that the conduct of Sawyer during a

public speech did not impugn the integrity of the judge in a

current Smith Act trial. The court held tht the lawyer’s comments

about the “shocking and horrible things that go on at the trial”

and that “[t]here’s no such thing as a fair trial ina Smith Act case”

were fair criticism of the law itself and the federal government’s

prosecutorial policy, not personal criticism aiined at the particular

trial judge. The court began “with the proposition that lawyers

are free to criticize the state of the law.” In re Sawyer, supra

at 631. Criticism of the law is not, per se, impermissible criticism

of the judicial system. In the words of the Sewyer court, “To say

that ‘the law is an ass, a idiot’ is not to impugn the character of

those who must administer it. ” /d. at 634.

The court also noted that “a lawyer may criticize the law-

enforcement agencies of the government, and the prosecution,

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even to the extent of suggesting wrongdoing on their part, with-

out by that token impugning the judiciary.” /d. at 632. Next, the

court stated that a lawyer can properly criticize a judge’s view of

the law. “If [the judge] was said to be wrong on his law, it is no

matter; appelate courts and law reviews say that of judges daily,

and it imputes no disgrace. Dissenting opinions in our reports are

apt to make [the lawyer's] speech look like tame stuff indeed.

[She] did not say [the judge] was corrupt or venal or stupid or

incompetent. The public attribution of honest error to the judi-

ciary is no cause for professional discipline in this country.” /d at

635.

Finally, the court noted that “surely permissible criticism may

as well be made to a lay audience as to a professional.” /d at 632.

“A lawyer does not acquire any license to do these things by not

being presently engaged in a case. They are equally serious

whether he is currently engaged in litigation before the judge or

not. We can conceive no ground whereby the pendency of litiga-

tion might be thought to make an attorney's out-of-court remarks

more censurable, other than that they might tend to obstruct the

administration of justice.” /d. at 636.

Implicit in this statement of permisible criticism of the law

and judiciary by the Sawyer court is that instances can exist

wherein an attorney’s criticism and conduct would be impermisi-

ble and the proper subject of profesional oversight. We observe,

as did the court in Matter of Frerichs, lowa ___., 238 N.W.

2d 764 (1976), that Justice Stewart, concurring in the result of

Sawyer, was speaking for five members of the court when he

stated:

“If, as suggested by my Brother Frankfurter, there

runs through the principal opinion an intimation that a

lawyer can invoke the constitutional right of free

speech to immunize himself from even-handed disci-

pline for proven unethical conduct, it is an intimation

in which I do not join. A lawyer belongs toa profession

with inherited standards of propriety and honor, which

experience has show necessary ina calling dedicated to

the accomplishment of justice. He who would follow

that calling must conform to those standards.

Obedience to ethical precepts may require absten-

A-5

tion from what in other circumstances might be consti-

tutionally protected speech.”

In re Sawyer, supra at 646-47 (Stewart, J., concurring.)

We have previously, yet infrequently, had occasion to review

charges of professional misconduct by attorneys who by their

conduct and comments chip away at public confidence in the.

integrity of the judicial system. In Kentucky State Bar Associa-

tion v. Lewis, Ky., 282 S.W. 2d 321 (1955) the attorneys involved

charged in pleadings and in the local newspaper that a change in

the assignment of special judges was politically motivated. We

recognized that an attorney, just as any citizen has the right to

criticize the courts and their decisions, but charges of corruption

or unethical conduct must be made only in good faith supported

by substantial competent evidence. The attorney “owes it to

himself as an attorney, to his profession, and to the Court to help

maintain the dignity and decorum of the Court, and thus main-

tain the respect of the people for judicial processes.” KSBA v.

Lewis, supra, at 324. Recently, in KBA v. Nall, supra, we applied

this rule to an attorney who described a proceeding before a

hearing officer of an administrative body as a “mere farce” and a

“Kangaroo court” during a radio station interview. Insolent,

impudent, and derogatory conduct can only serve to bring the

judicial system into discredit in the public mind. See also Ken-

tucky Bar Asociation v. Getty, Ky., 535 S.W. 2d 91 (1975) cert.

denied 423 U.S. 1048.

We are not alone in our opinion that by coming to the bar an

attorney incurs the ethical obligation not bring the bench and bar

into disrepute by unfounded public criticism. “Our system of

justice rests upon the mutual regard of the bench and bar.” Matter

of Frerichs, supra at 766. “[i]n the case of a lawyer an abuse of the

right of free spech may be some index of his character or fitness to

be a lawyer.” In re Lacey, ___S.D. —__., 283 N..W. 2d 250, 252

(1979) quoting In re Gorsuch, 76 S.D. 191, 75 N.W. 2d 644, 57

A.L.R. 2d 1355 (1956). “Nor does free speech give a lawyer the

right to openly denigrate the court in the eyes of the public. In re

Raggio, 87 Nev. 369, 371,487 P. 2d 499, 500 (1971). See also, Inre

Glenn, 256 lowa 1233, 130 N.W. 2d 672, 12 A.L.R. 3d 1398

(1964); ABA Code of Professional Responsibility, EC 8-6;

Annot., 12 A.L.R. 3d 1408; Annot., 56 L.Ed. 2d 841, 855-69. But

A-6

see, Justice of the Appellate Division v. Erdmann, 33 N.Y. 2d 559,

347 N.Y.S. 2d 441, 301 N.E. 2d 426 (1973); State Bar v. Semaan,

Tex. Civ. App., 508 S.W. 2d 429 (1974); Polk v. State Bar of

Texas, N.D. Tex., 374 F. Supp. 784 (1974).

We conclude as did the Board of Governors that Respon-

dent’s public attribution of “highly unethical and grossly unfair”

behavior to a named sitting judge, a charge that Respondent

knew, or should have known, was unwarranted, was unethical

and unprofessional conduct tending to bring the bench and bar

into disrepute and to undermine public confidence in the integrity

of the judicial process. If the Respondent had had reason to

believe in good faith that the trial judge had engaged in proscribed

conduct, then the proper forum in which to have made his claim

was the Judicial Retirement and Removal Commission as pro-

vided in our Constitution, Section 121, and in our rules of court,

SCR 4.000-4.300.

Taking into account the sincerity of the Respondent, his

relative inexperience at the bar, the emotional issue involved, and

our recent disposition of a similar case, we concur with the

recommendation of the Board of Governors that Respondent be

publicly reprimanded. However, while two recent instances such

as this one may be a coincidence, three would certainly indicate an

unwelcome trend. It is enough to say that in the future a stiffer

penalty may be imposed. See KSBA v. Lewis, supra.

“[E]very lawyer, worthy of respect, realizes that public

confidence in our courts is the cornerstone of our governmental

structure, and will refrain from unjustified attack on the character

of judges, while recognizing the duty to denounce and expose a

corrupt or dishonest judge.” KSBA v. Lewis, supra, at 326.

This court finds the Respondent, Robert L. Heleringer, guilty

of unprofessional and unethical conduct which tended to bring

the bench and bar of the Commonwealth of Kentucky into disre-

pute. He is hereby publicly reprimanded and directed to pay the

costs of these proceedings.

All concur.

A-7

[Filed March 25, 1980]

SUPREME COURT OF KENTUCKY

KENTUCKY BAR ASSOCIATION ..... COMPLAINANT

VS. OPINION

ROBERT L. HELERINGER ............. RESPONDENT

eee EE SE

The facts in this matter are undisputed, even though a lengthy

evidentiary hearing was held, at the request of the Respondent.

The events leading to the charge of unprofessional conduct

involved litigation in the Jefferson Circuit Court over a contro-

versial subject, abortion, and both the complainant and re-

spondent tend to involve themselves more in the merits of the

abortion issue than in the merits of whether or not unprofessional

conduct on behalf of the respondent was in fact committed.

A restraining order was issued by Hon. Benjamin F. Shobe,

Circuit Judge, Division 15, Jefferson Circuit Court, concerning

an abortion ordinance adopted by the Jefferson Fiscal Court. This

restraining order was issued on December 19, 1978. The next day

at a “press conference” called by the organization known as Right

to Life of Louisville, Inc., according to respondent’s testimony,

there were two major newspapers, three radio stations, one televi-

sion station in attendance. Respondent was not only attorney for

the Right to Life of Louisville, Inc., but was a member of its

Board of Directors, and therefore an officer in said organization.

At this press conference the Respondent, insofar as it relates to

the Judiciary, was written up in the Louisville Times as follows:

“Further, he [Respondent] lashed out at Shobe, calling

the Judge’s refusal to wait "highly unethical and grossly

unfair’.”

In this press conference the Respondent also called for the

resignation of the Board of Health members who have advocated

defying the ordinance, calling their recent comments “open

insurrection”. Attached hereto is a Xerox copy of the newspaper

article in its entirety.

The question seems to be whether or not the Respondent's

A-8

attack upon the judiciary constitutes unprofessional conduct

such as to bring the Bench and Bar into disrepute or is protected

by the First Amendment to the Constitution of the United States

guaranteeing freedom of speech.

The Courts have frequently recognized that an attorney, both

as an officer of the Court and asa citizen, has a right to criticize in

properly respectful terms and in legitimate channels the acts of

courts and judges. Kentucky State Bar Association v. Lewis, Ky.,

282 S.W. 2d 321 (1955). As noted in the Lewis case, supra, every

lawyer worthy of respect realizes that public confidence in our

courts is a cornerstone of the governmental structure, and that he

should refrain from unjustified attacks upon the judiciary, while

recognizing the duty to denounce and expose corrupt or dishon-

est judges.

The Respondent, admitting the fact that he referred to the

Judge as being “highly unethical and grossly unfair”, defends the

right to make such a charge by reason of his right of free speech

and free discussion. The right of free speech and free discussion as

to judicial determination is of prime importance under the Amer-

ican system and ideals of government. We must note that a lawyer

is an officer of the Court, duty bound to uphold the judicial

system of this Commonwealth. As noted in the language of

Taylor v. Haves, Ky.,494S.W. 2d 737 (1973), the language of the

Respondent “demonstrates something less than complete and

total respect for the judicial system of this Commonwealth”.

Though an attorney may dislike or fail to respect an indivi-

dual who sits on the Bench, nevertheless it is the duty of every

attorney to respect the robe that that individual wears. The robe

represents judicial authority and the judicial system. There is little

doubt but that the statements of the Respondent, published ina

newspaper of such wide circulation as the Louisville Times, tends

to tear down the respect of the judiciary that should be held by the

public. There are proper places for a citizen to complain about a

judge being “unethical”, but the public media is not that place.

It is evident that the accused went beyond the limits of fair

criticism of the Court. As stated in Cannon I:

“It is the duty of the lawyer to maintain towards the

Courts a respectful attitude . . . whenever there is

proper ground for a serious complaint of a judicial

officer, it is the right and duty of the lawyer to submit

7%

A-9

his grievance to the proper authorities.”

With reference to the Respondent’s contention that he had a

right to say what he did by reason of the freedom of speech

provided for in the First Amendment, even this right should be

curbed when the integrity of the Courts has been willfully and

maliciously assailed. State Bar Commission, et al v. Sullivan, 35

Okla. 745, 131 Pac. 703. True that a private citizen does not

surrender his right to freedom of expression when he becomes a

licensed attorney of his State, except where his misconduct

threatens a significant State interest. The State certainly has an

interest in maintaining the respect of the public for its judiciary.

Surrounding a subject so filled with tenseness as is the subject of

ABORTION, any comments by an officer of the Court such as

the Respondent to the effect that the judge was “highly unethical

and grossly unfair” impunes [sic] the entire judicial system, at least

to any newspaper reader who would disagree with the Court’s

ruling. A leading case on the “freedom of speech question” is that

of In Re Sawyer, 360 U. S. 622 (1959). In that case Sawyer repre-

sented a number of defendants who had been indicted and were

being tried in the Federal Court for conspiracy under the S:nith

Act. Sawyer made a public speech to a group of laymen where she

spoke of the “horrible and shocking things” going on at the trial,

the impossibility of a fair trial, and the Court’s ignoring the rules

of evidence. Noting that Sawyer’s speech did not subject her to

discipline because it did not directly impune [sic] the integrity

and impartiality of the Trial Court, Justice Stewart, in a concur-

ring Opinion discussed the issue of free speech under the First

Amendment as follows:

“If, as suggested by my Brother FRANKFURTER,

there runs through the principal opinion an intimation

that a lawyer can invoke the constitutional right of free

speech to immunize himself from even-handed disci-

pline for proven unethical conduct, it is an intimation

in which I do not join. A lawyer belongs to a profession

with inherited standards of propriety and honor, which

experience has shown necessary in a calling dedicated

to the accompli*hment of justice. He who would follow

that calling must conform to those standards.

Obedience to ethical precepts may require abstention

from what in other circumstances might be constitu-

A-10

tionally protected speech.”

Furthermore, Justice Frankfurter, in a lengthy dissenting

Opinion, states:

~ “Time, place and circumstances determine the consti-

tutional protection of utterance ... but a lawyer

actively participating in a trial, particularly an emo-

tionally charged criminal prosection, is not merely a

person and not even merely a lawyer... It is hard to

believe that this Court should hold that a member of

the legal profession is constitutionally entitled to

remove his case from the Court in which he is an officer

to the public and press, and express to them his grie-

vances against the conduct of the trial and the judge.

‘Legal trials’, said this Court, ‘are not like elections, to

be won through the use of the meeting-hall, the readio

and the newspaper’. Bridges v. California, 314 U.S.

252, 271, 62 S. Ct. 190, 197...

An attorney actively engaged in the conduct of a trial is

not merely another citizen. He is an intimate and

trusted and essential part of the machinery of justice,

an ‘officer of the court’ in the most compelling sense.

He does not like [sic] for a forum in which to make his

charges of unfairness or failure to adhere to principles

of law; he has ample chance to make such claims to the

courts in which he litigates. As long as any tribunal

bred in the fundamentals of our legal tradition, ulti-

mately this court, still exercises judicial power, those

claims will be heard and heeded.

Certainly, courts are not, and cannot be, immune from

criticism, and lawyers of course, may indulge in criti-

cism. Indeed, they are under a special responsibility to

exercise fearlessness in doing so. But when a lawyer

goes before a public gathering and fiercely charges that

the trial in which he is a participant is unfair, that the

judge lacks integrity, the circumstances under which he

speaks not only sharpens what he says but he imparts

to his attack inflaming and warping significance. He

says that the very court room into which he walks to

plead his case is a travesty, that the procedures and

v%

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A-Il

reviews established to protect his client from such con-

duct are a sham. ‘We are a society governed by law,

whose integrity it is the lawyer's special role to guard

and champion’. In Re Howell, 10 N.J. 139, 142, 89 A.

2d 652, 653 (concurring opinion). (emphasis supplied)

In the recent South Dakota case of Jn The Matter of Lacey,

283 N.W. 2d 250 (1979), Lacey represented taxpayers who sought

to halt construction of a classroom building. In a newspaper

article reporting that his clients would appeal an adverse decision

to the United States Supreme Court, Lacey was quoted as saying,

“The State Courts were incompetent and sometimes were down-

right crooked, Judge Adams excepted”. The Grievance Committe

recommended disbarment of Lacey, but the accused defended his

language upon First Amendment grounds. Noting that Lacey

could have filed his complaints with the State Commission which

regulated the conduct of judges, his First Amendment contention

was rejected upon the grounds that attorneys must maintain the

respect due to the courts of justice and judicial officers.

The Respondent should have known his statements at the press

conference would serve to undermine public confidence in the

integrity of the judicial process and would bring the Bench and

Bar into disrepute. The subject of abortion is so controversial that

the remarks about Judge Shobe could but help to cause those

persons on the side of Right to Life to believe that Judge Shobe

had acted with a malicious intent. The reading of the entire article

in the Louisville Times is just another opportunity for the News

Media to take one more slap at the judiciary. The Respondent

made all of this possible with his imprudent remarks. It is the

Opinion of the Board of Governors that the Respondent should

be found guilty as charged and publicly reprimanded.

/s/ Frank V. Benton

FRANK V. BENTON, III, PRESIDENT

KENTUCKY BAR ASSOCIATION

A-12

MINUTES AND CERTIFICATION

OF PROCEEDING BY

BOARD OF GOVERNORS

KENTUCKY BAR ASSOCIATION

IN RE; ROBERT L. HELERINGER

1, Frank V. Benton, III, President, do certify:

This cause came on for consideration by the Board of Gover-

nors of the Kentucky Bar Association, 14 members entitled to

vote on disciplinary matters being present, and all other persons

and staff absent from the room.

The record of the case was physically present.

On motion made and seconded, the report of the Trial Com-

missioner was received.

The case was discussed, the discussion being confined to the

record. ,

After full consideration, a roll call vote was taken on the issue

of guilt or innocence. The result:

Guilty 12

Not Guilty |

Abstaining |

After discussion was held on the appropriate punishment, a

roll call vote was held with a majority of 13 recommending to the

Supreme Court of Kentucky that the Respondent be publicly

reprimanded and required to pay the costs in this action.

This certificate and minutes of proceeding, after being

inspected by each member voting, are made a part of the record in

this case and the minutes of the Association.

This 22nd day of March, 1980.

/s/ Frank V. Benton

FRANK V. BENTON, III PRESIDENT

ATTEST:

/s/ Leslie G. Whitmer

LESLIE G. WHITMER, DIRECTOR

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>

A-13

[Filed August 10, 1979]

SUPREME COURT OF KENTUCKY

KENTUCKY BAR ASSOCIATION....... COMPLAINANT

v. CHARGE

ROBERT L. HELERINGER.............. RESPONDENT

eeeee

Comes now the Kentucky Bar Association, by and through its

Inquiry Tribunal, and states that respondent, Robert L. Helerin-

ger, whose last known address is Suite 709, 310 West Liberty

Street, Louisville, Kentucky 40202, a member of said association,

did engage in the following unethical and unprofessional con-

duct:

On or about December 19, 1978, Judge Benjamin F. Shobe,

Jefferson Circuit Court, Louisville, Kentucky was presiding at a

criminal jury trial in Jefferson Circuit Court. Judge Shobe

ordered a recess of the criminal trial until 1:30 p.m. to hear a

motion for a temporary restraining order to stop the enforcement

of an ordinance of the Jefferson County Fiscal Court providing

for the regulation of abortion practices. The hearing on the

motion for the temporary restraining order was scheduled to

begin at 1:00 p.m. At approximately 12:50 p.m. an Assistant

Jefferson County Attorney, Edward Schoenbachler, appeared in

Judge Shobe’s office and requested that he be granted an addi-

tional twenty minutes before hearing the motion for the tempor-

ary restraining order on the ground that Schoenbachler was busy

in another division of court. Judge Shobe granted the request.

When Schoenbachler did not return by 1:30 p.m., Judge Shobe

conducted a hearing on the motion for a temporary restraining

order and granted the motion so that he could proceed with the

criminal jury trial. Respondent is counsel to and a representative

of an anti-abortion organization known as Right to Life of

Louisville, Inc. On or about December 20, 1978, respondent

attended a news media press conference called by Right to Life of

Louisville, Inc. During the press conference, respondent made a

statement that Judge Shobe’s decision to hear the motion for a

A-14

temporary restraining order without waiting for Schoenbachler

to be present was “highly unethical and grossly unfair.” Respon-

dent’s remarks were published in the Louisville Times newspaper

on or about December 20, 1978. A true and correct copy of said

newspaper article is appended hereto, made a part herof, and

marked as “Exhibit A.”

WHEREFORE, complainant charges that such actions by

respondent constitute unethical and unprofessional conduct

tending to bring the bench and bar of Kentucky into disrepute;

aid that an appropriate degree of discipline should be adminis-

tered to respondent in accordance with SCR 3.380.

KENTUCKY BAR ASSOCIATION

/s/ William P. Donan

ATTEST: WILLIAM P. DONAN, CHAIRMAN

INQUIRY TRIBUNAL

/s/ Leslie G. Whitmer

LESLIE G. WHITMER, DIRECTOR

KENTUCKY BAR ASSOCIATION

A-!5

COMMONWEALTH OF KENTUCKY

Supreme Court of Kentucky

MANDATE

KENTUCKY BAR ASSOCIATION

File No. 80-SC-188-KB

In Supreme Court

VS. :

Opinion Rendered July 15, 1980

ROBERT L. HELERINGER

The Court being sufficiently advised, and this Court’s per curiam

opinion having been rendered July 15, 1980, it is therefore consi-

dered that this court finds the respondent Robert L. Heleringer

guilty of unprofessional and unethical conduct which tended to

bring the bench and bar of the Commonwealth of Kentucky into

disrepute. He is hereby publicly reprimanded and directed to pay

the costs of these proceedings.

A Copy - Attest:

JOHN C. SCOTT, CLERK

Issued August 5, 1980

BY /s/Rose Tomlinson, D.C.