# Petition — Heleringer v. Kentucky Bar Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1101

## Text

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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2
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ............. l
PARTIES TO PROCEEDING IN
SUPRME COURT OF KENTUCKY................. |
en Es Wd Dk cay ica se elcleecccdocnewes 2
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
EE, dk oo do Gu cies olac cep bee waceeee 3
ere or OU COE cae cacvccecscceccceesee 5
Es eid cla e'n'w bub bs oki hE bo 60 0b 06 bbe 060000 10
Cee iin ec Senet dale ech eedeaeheeeswabeen 1]
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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

5

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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6

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

7

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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A-|

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

A-2

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.

A-3

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,

A-4

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

v%

>

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0738%3A1. Public record. Not legal advice.