ACLU of KY Joins Defense of Jefferson County Attorney In Discipline Case
Maintains that attorney’s letter to judges not an improper ex parte communication and fully protected political speech.
The ACLU of KY announced that is has joined the legal team defending Jefferson County Attorney Mike O’Connell in a pending attorney discipline case. The case involves a letter O’Connell sent to judges last year (copy attached) in which he decried a “procedurally unrestrained” practice of defense attorneys raising suppression issues in criminal cases after trials begin even though the factual bases for most such motions are known much earlier. According to O’Connell, this precludes his office from appealing suppression rulings in cases where the defendant, after the motion is granted and the evidence excluded, is then acquitted. O’Connell proposed a rule change that would require such motions to be decided before trial, and he sent it to the Chief District Court Judge with copies to the remaining judges and the Chief Public Defender.
O'Connell Attorney Discipline Case Letter
The letter triggered a Complaint to the Kentucky Bar Association (KBA) alleging that it violated the rule against attorneys communicating with judges about pending cases without the other side present. Last month, the KBA’s Inquiry Commission agreed and entered an Order of Private Admonition against O’Connell. Though he first sought to have the Commission reconsider its decision, O’Connell has since withdrawn that request, rejected the Order, and requested that the matter proceed to a trial commissioner. In commenting why the ACLU became involved after the Order was entered, Exec. Director Michael Aldridge stated, “While we agree that the Bar may punish attorneys who engage in improper, one-sided communications with judges about pending cases, that did not happen here, and in any event that authority does not extend to Mr. O’Connell’s letter which, we believe, is fully protected under the First Amendment.”
Explaining his decision to waive confidentiality normally associated with these cases, O’Connell said, “I’ve done nothing improper, and I am not content to remain silent while this flawed enforcement action continues.” He added, “To suggest that an elected prosecutor, or any licensed attorney, cannot send a letter suggesting a rule change directly to those who are responsible for making those decisions is simply wrong.”
This is the second recent case in which the ACLU of Ky. has defended attorneys’ speech rights. Last year, the 6th Circuit Court of Appeals ruled in favor of the ACLU’s client, John Berry, finding it “evident that the KBA acted unconstitutionally” in restricting his right to free speech.
Representing O’Connell are Charles E. “Buzz” English, Jr., a former president of the Kentucky Bar Association, and William E. Sharp, ACLU of Ky. staff attorney.
