The prisoner, Thomas Farese, contends the rule "tramples on free speech" and violates "fundamental principles of fairness" by failing to balance the rights of private citizens with those of attorneys. In a virtually identical case, a federal judge in Florida last year threw out that state's gag rule, holding that it violated the First Amendment.
Although that decision, which wasn't appealed, is not binding in Kentucky, it was so persuasive that Attorney General Fred Cowan's office declined a request to defend the Kentucky Bar Association in Farese's case, according to Deputy Attorney General Brent Caldwell.
Caldwell said his office also declined the case because it considers Kentucky's secrecy rules to be "anti-consumer." The Courier-Journal obtained a copy of Farese's petition, and Deputy Supreme Court Clerk Janie Holcolm confirmed it has been filed.
In the petition, Farese -- who is serving a 20-year federal sentence for marijuana-trafficking and racketeering -- asks for the "unfettered" right to discuss the disciplinary complaint he filed in January against an unnamed Kentucky lawyer.
He also attacks the confidentiality rules for prohibiting the disclosure of complaints against lawyers until they are fully adjudicated -- and then only if a public sanction is imposed.
"Attorneys should be held to the same, if not higher standards as other citizens, businessmen and professionals," Farese wrote. "If they are complained about, the public has a right to know.
"In comparable circumstances," the public may simply call the local Better Business Bureau or appropriate entity for negative or positive information."
As he has in the past, KBA president David Yewell defended the secrecy rules in a recent interview, contending that they are necessary to shield the reputation of lawyers from frivolous complaints.
"I don't think a public forum is the proper place to try a disciplinary case against an attorney," Yewell said. "It doesn't need to be trotted out and discussed in the media."
In the Florida case, U.S. District Judge Stanley Marcus rejected the notion that protecting lawyers' reputations justifies repression of free speech.
"Imposing an enforced silence on all aspects of bar disciplinary matters is more likely in our view to engender contempt for Florida's legal institutions than to promote integrity, confidence and respect," he wrote in the March 1990 ruling.
Last November, an ABA team invited to evaluate Kentucky's system voiced a similar concern, saying secrecy has "an obvious tendency to erode public confidence in the profession's ability to enforce high standards of ethical behavior." The team recommended that Kentucky open its disciplinary process to the public, once probable cause is found that a charge has merit.
In 1988 Kentucky received the worst grades among 33 states evaluated by HALT, a national legal reform group, on their openness and public participation. And in 1987 The Courier-Journal reported that because of the secrecy rules, some clients -- including some criminal defendants facing the death penalty -- unknowingly hire lawyers under investigation by the bar.
Kentucky Supreme Court rules forbid citizens from revealing or discussing complaints; violators can be found in contempt of court, although no one has been in recent memory. By contrast, the lawyer against whom a complaint is filed "may elect to discuss his case with others to the extent he deems it appropriate," according to the rules.
Farese, who was sentenced in 1978, served from August 1985 to 1986 in the Federal Correctional Institution near Ashland and is now at a federal prison in Miami. He did not respond to a request for an interview.
Yewell said he didn't know the identity of the lawyer against whom Farese filed his complaint, which is still pending. Bruce Davis, the KBA's executive director, wouldn't identify the lawyer.
Davis also declined to provide the newspaper with a copy of the bar's brief, although he said it asks the Supreme Court to give the unnamed lawyer a chance to file a brief in the case.
Florida's gag rule was overturned by a citizen, identified only as John Doe, who wanted to write a letter to the editor complaining that a private reprimand slapped on his lawyer was too lenient.
After Doe's victory, the Florida Supreme Court loosened several confidentiality rules, in addition to the one that was challenged. Since then, there has been no "significant fallout," according to Tony Boggs, director of regulation for The Florida Bar, which had opposed Doe.
"There is some feeling that this will work to the benefit of the bar because it shows that we are more fair and open," Boggs said.