Archive for the ‘Legal ethics.’ Category

Lawyers in Colorado are smart to be circumspect about what their attorney lords of discipline might do to them if they start counseling marijuana-related businesses or partaking a bit of the herb for themselves. Notwithstanding that January 1, 2014 it became legal for Colorado residents 21-years of age and older to legally buy up to an ounce of recreational marijuana, the state’s lawyers aren’t so sure how that applies to them.

Consider that some jurisdictions impose disciplinary sanctions on lawyers for illegal drug use, which can range from reprimands to suspensions to disbarment.

File:Image The Devil s Weed.jpgAlready risk-adverse by dint of occupation, Colorado’s lawyers are afraid to tread where only tokers rush in. They have a lot to lose: their bar licenses and their monopolistic meal-tickets.

So they want assurances first. Indeed, according to a report from Time, “a stream of lawyers and judges appeared at the Colorado Supreme Court on Thursday to argue for rule changes that would explicitly allow lawyers to give advice related to marijuana without fearing disciplinary action — as well as use marijuana themselves.” See “Colorado Lawyers Want to Get High Like Everybody Else.” Also see “Ethics Panel Asks Colorado Supreme Court To Amend Rules, Authorize Marijuana Advice.”

The problem arises because while recreational marijuana use in Colorado is legal — not so with the feds. More specifically, what’s worrying Colorado’s lawyers is Ethics Rule 8.4 Misconduct, which says “It is professional misconduct for a lawyer to (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

320px-Irene_Ryan_1968Understandably, Rocky Mountain High lawyers want to first make sure they’ll be protected from discipline under that rule before they indulge in personal use or “strictly for medicinal purposes” as Granny used to say about her ‘roomatiz medicine,’ 

File:Drug bottle containing cannabis.jpgWhat’s more, at least for now the Standing Committee studying the matter has already nixed recommending protections to enterprising Colorado lawyers who might’ve entertained broadening their legal practices to include operating marijuana-related commercial businesses.

Unlike those coffee-cum-counseling legal services operations in California, there won’t be any cannabis-cum-counseling legal services providers in Colorado. What a concept that would’ve been — clients eager to visit their lawyers.

Still, the whole thing is taking a long time. Colorado’s legal establishment has been wrestling over it for over a year. But at long last, a final decision is imminent. And probably not soon enough for lawyers craving a bit of ganja with their Marley.

Meanwhile here in Arizona, pot use is limited to prescribed medical purposes. Consequently, what confronted the local lawyer ethics police was different from what faces Colorado’s lawyer disciplinary gurus.

Just before the Arizona Medical Marijuana Act took effect on April 14, 2011, which legalized medical marijuana for use by people with certain “chronic or debilitating” diseases, the Arizona Bar formed their own task force to study the Act’s implications. The result was a carefully delineated, narrowly tailored ethics opinion. But like all such opinions, prudent lawyers know it’s always caveat emptor or in this case, ‘cannabis consuasor emptor’ when relying on a state bar’s disclaimer-laden ethics opinions.

So regardless of outcome, Colorado lawyers wanting to toke up will be well advised to follow not just the bar’s counsel but the Bard’s, “Discretion is the better part of valor.”

Experienced lawyers already know. If you call ethics counsel for precise, distinct ethics advice, chances are their counsel will be magically worthy of J.R.R. Tolkien’s admonition about elves, Go not to the Elves for counsel, for they will say both no and yes.”

In Arizona, for example, the “formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.” [Emphasis added]

Put that in your pipe and smoke it.



Photo Credits: “She Shoulda Said No!” at Wikimedia Commons, public domain, Image_The_Devil_s_Weed.jpg;“marijuana joint,” by Torben Hansen at Flickr via Creative Commons-license requiring attribution; Irene Ryan as Granny Clampett, Beverly Hillbillies, at Wikimedia Commons, public domain;Drug_bottle_containing_cannabis.jpg ‎ at Wikimedia Commons, public domain.; “Marijuana and a pipe,” by Erik Fenderson, 2006-03-19, at Wikimedia Commons, public domain.

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Topless lawyer wannabes? With that as a titillating lead, I’m going to tell you about a devastating critique of what passes for prosecuting the unauthorized practice of law (UPL) in Arizona.

It’s a real-life story posted last November by would-be whistle-blowing criminal defense lawyer Karyl A. Krug who until she was injudiciously shown the door had been a Capital Staff Attorney in the Arizona Death Penalty Judicial Assistance Program.

Krug is no crank. A 20-year Texas board-certified criminal law and criminal appellate law specialist turned Arizona lawyer, her experience, credentials and distinctions enviably run three pages.

LAW AND JUSTICE 63She’s a former Chair of the Criminal Law Exam Commission for the Texas Board of Legal Specialization. She Chaired the ABA Habeas Reform Subcommittee; and Co-Chaired the ABA Criminal Justice Section, Appellate and Habeas Committee. In 1996, Krug garnered the second DNA exoneration in Texas. And besides 18 reported cases, she also had the first published Vienna Convention case in Texas on behalf of a foreign national. Oh, and she also served on the ABA’s Postconviction Task Force to advise Standards Committee and done a lot more other stuff than most lawyers ever will.

Slings and arrows.

File:Sebastia.jpgBut hers is a cautionary tale. If someone so impeccably credentialed can suffer such ‘slings and arrows,’ then what of lesser mortals? More dismayingly, it also hollows out the resolve and reliability of UPL enforcement actions in the Grand Canyon state.

But before getting to her provocatively-titled story, “Arizona Is Calling All Topless Lawyer Wannabes,” which necessarily must be filed in the prodigious ‘no good deed goes unpunished’ folder, here’s some background.

A mess of things.

Politics Law & Finance 43Over the years, Arizona along with most other jurisdictions has pretty much made a mess of defining what is and what isn’t the practice of law. Indeed, more than a half-century ago, the state supreme court in State Bar of Arizona v. Arizona Land Title & Trust Co. 366 P.2d 1, 90 Ariz. 76 said “In the light of the historical development of the lawyer’s functions, it is impossible to lay down an exhaustive definition of “the practice of law” by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work.”

People 1857Still, give the high court credit for trying. There is after all, an Arizona definition and while not statutory, it’s nevertheless the governing rule, Arizona Supreme Court Rule 31, “Regulation of the Practice of Law.”  And notwithstanding the rule’s 21 exceptions, it’s meaning is clear to everybody — except the lawyers and non-lawyers who’re supposed to follow it.

In Arizona, for example, non-lawyers known as certified legal document preparers can prepare pleadings/wills/other legal documents; attend administrative proceedings; handle pre-trial activities; negotiate legal matters; appear in court; attend real estate closings; participate in state administrative proceedings; and participate in alternative dispute resolution proceedings.

child silly faceLegal document preparers can also provide general legal information — but they can’t give legal advice. And when you’re able to make that distinction without a difference — let me know.

I know it when I see it.

flashlight gh 2Not that things are clearer elsewhere. In Minnesota, for instance, in a bit of unintended understatement, that state’s supreme court said, “The line between what is and what is not the practice of law cannot be drawn with precision.”

And reminiscent of what Justice Potter Stewart memorably said about knowing something when he sees it, the court added, “Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice may also be done by others without wrongful invasion of the lawyers’ field.” See Cardinal v. Merrill Lynch Realty/Burnet, 433 NW2d 864 (Minn. 1988).

The courts, though, wouldn’t necessarily be better off applying Lord Justice Jeremy Stuart-Smith’s “well known elephant test” from Cadogan Estates Ltd v Morris. Referring to an elephant, the Lord Justice said, “It is difficult to describe, but you know it when you see it.”

Meanwhile in Arkansas, that state’s highest court threw up its collective hands and said it was “impossible to frame any comprehensive definition of what constitutes the practice of law” and added, “perhaps it does not admit of exact definition.” See Arkansas Bar Association v. Block, 323 S.W.2d 912 (1959).

UPL — Unauthorized Practice of Law.

http://cdn.morguefile.com/imageData/public/files/q/quicksandala/11/l/1384652253jvwl6.jpgAmorphous definitions or not, states do try — albeit with varying degrees of commitment but plenty of lip service to crack down on what’s supposed to be unauthorized practice. But getting arms around the spiny porcupine isn’t easy. 

Almost two years ago to modest fanfare, the Arizona State Bar announced it was partnering with U.S. Citizenship and Immigration Services and other local and federal agencies to crack down on the unauthorized practice of immigration law. However, it was all part of a nationwide public relations effort initiated not by the Arizona bar but by U.S. Citizenship and Immigration Services (USCIS).

Enforcement? What enforcement?

But without a universal probe library (UPL) or an upper prediction limit (also UPL), it’s difficult to figure how serious or successful these crack downs are to more forcefully restrain that better-known UPL, the unauthorized practice of law.

Arizona does have a statute dealing with the unauthorized practice of immigration and nationality law, although it’s hard to say how many prosecutions let alone class 6 felony convictions the attorney general has made to prevent or stop violations.

But other than this single UPL immigration statute, as Krug points out, it’s not otherwise a crime in Arizona to engage in unauthorized practice of law. The only remedies hereabouts are civil injunction, civil contempt, and a civil fine. And as for what money is spent policing UPL, good luck on that. It’s not readily known since the number’s buried in the $5MM or so the disciplinary wheels spin regulating Arizona lawyers.

All the same, according to the state bar’s website and its last update three years ago this month, only 27 UPL formal complaints have been filed; 14 UPL cease and desist consent agreements signed; and 4 contempt actions filed. By comparison, that’s a far cry from the 695 full screen lawyer disciplinary investigations performed just in 2012.

But not to pick just on Arizona, the enforcement is scatter-shot most everywhere else. It’s underfunded, under-reported and underwhelmed. Not surprisingly, some jurisdictions even have as much trouble defining UPL as they do the practice of law. If you can’t define it, is there any wonder enforcement’s so erratic?

Moreover, the last report of any consequence was almost two years ago when the American Bar Association (ABA) Standing Committee on Client Protection rolled out its 2012 Survey of Unlicensed Practice of Law Committees.

Cartoon Characters 310Here are a couple of highlights: “Twenty-three jurisdictions actively enforce UPL regulations, although some jurisdictions indicate that insufficient funding or resources make enforcement challenging. Nine jurisdictions stated that enforcement is inactive or non-existent.

“Most jurisdictions either do not have a specific annual expenditure for UPL enforcement or were unaware of the exact amount.”

Topless Lawyer Wannabes.

So getting back to Suzette Hall, the Colorado woman busted for giving topless haircuts and how that ties into practicing law in Arizona without a license. Unlike lawyers who proudly display law licenses on office walls, Suzette’s male customers apparently never bothered to ask about her cosmetology credentials. They just paid the $45 to get the topless haircut. So Karyl Krug’s point in her blog post is that “Colorado is tougher on unlicensed hairdressers than Arizona is on unlicensed attorneys.

“Colorado must be a very conscientious state. In Colorado, Suzette Hall was arrested for suspicion of practicing cosmetology without a license. I am assuming it is because she was practicing her craft sans a trendy burnout tee from the Sundance Catalog; or a shirt of any kind. Whether toplessness constitutes reasonable suspicion to believe that one does not have a license to practice one’s chosen profession in Colorado, much less probable cause for an arrest, I will leave to the authorities in Colorado.

“By contrast, you cannot get arrested in Arizona for practicing law without a license, clothed or otherwise. Since we have had a multitude of topless demonstrations in Tempe and Phoenix in the recent past, I think it might be safe to say that Ms. Hall could have declared herself a topless lawyer in Arizona without fear of arrest.

“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.

“This is in stark contrast to Texas, known as that other crazy, red, Wild West state. I have been licensed to practice law in Texas for 20 years. It is a third degree felony to practice law without a license and get paid to do so, punishable by two to ten years in prison. In Arizona, it is a violation of Arizona State Bar Rules, but it is not a crime.”[1]

The rest of Krug’s legal reality story describes what happened to her after she outed a non-lawyer colleague working as a ‘Capital Staff Attorney’ in the Arizona Death Penalty Judicial Assistance Program. Both were dispensing legal advice to “trial judges statewide on the law in death penalty cases” and writing “proposed orders and legal memoranda.” Only thing is Krug’s colleague wasn’t a lawyer although she held herself out to be one and was actually called one!

And after fulfilling her ethical precepts by telling near everyone that needed to know from the state bar to the court to the Attorney General to the FBI and including possibly God Almighty that this was not only UPL but what she strongly believed to be grant fraud, Krug figuratively got her head handed to her for her troubles.
Meanwhile those both derelict and accountable for what took place got what’s tantamount to the sound of crickets chirping — nothing. Read the rest of her story here.


[1] Excerpted with express permission of author Karyl Krug at LiberalAmerica.org

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Kevin Lomax: “Why the law? Cut the shit, Dad! Why the lawyers? Why the law?”

John Milton: “Because the law, my boy, puts us into everything. It’s the ultimate backstage pass. It’s the new priesthood, baby. Did you know there are more students in law school than lawyers walking the Earth?”  – The Devil’s Advocate (Al Pacino as John Milton, Keanu Reeves as Kevin Lomax)
File:Fashion Plate Manteau 1823.jpgRare indeed is the lawyer without a healthy, nay — a super-sized ego. No matter if handsome, homely, gorgeous, ill-favored or just ordinary, rarer still is the advertisement, commercial or webpage without the pseudo powerful, omniscient and authoritative, even smiling counselor’s countenance.
Sure there are ethical rules concerning the use of hopefully better looking actors who portray attorneys in advertisements, but absent “a clear disclosure that the actor is not a member or employee of the firm or that the depiction is a dramatization,” than it is considered “misleading and deceptive.” So in fairness to lawyers who advertise, ‘they just gotta put their mugs in their ads!’
Last April, I mentioned lawyer advertising parenthetically at In that post, I also mentioned along with others, Georgia lawyer Jamie Casino as among “the commercially capering counselors who ought to at least have their own ‘Hall of Fame’ if for nothing else, the entertainment value they bring to the public.”
Well kudos to Casino who made news on Sunday by bringing a lot of entertainment and even high production value with his local television commercial during the Super Bowl. It was a far cry from most lawyer TV commercials. And it must have cost Casino a considerable chunk of counselor’s change.
Too bad those of us in the southwest didn’t get to see it during the game, especially as most of the much ballyhooed Super Bowl television ads were frankly, crap. But thanks to social, viral and even the more staid traditional media, the word got out. The super-sized lawyer ego is alive and well. And Casino’s is even healthier the most. No actor portrayals here, it was lawyer Jamie Casino in living color and while hardly, an Oscar-winning turn, it was a film clip at least worthy of ‘the best’ of ghost-riding Nicholas Cage on fire.
But as I noted last time, there will be head-shaking dismay “for lawyers who see themselves as part of a noble profession — nay, who may be besotted with a self-image redolent of a rarefied priesthood, well those sacerdotal practitioners will always get their cassocks in a bunch over the audacious advertising antics of their earthier colleagues.” So here’s the same news again — to the pompous and full of themselves, the law isn’t an altar, last time I looked, the courtroom wasn’t a cathedral, and you aren’t priests.

So give it a rest. And get a load of this intellectual property lawyer with a sense of humor.
And here’s a link to the professorially serious side of the same lawyer.
Photo Credits: Fashion_Plate_Manteau_1823.jpg fashion plate from Costume Parisien, 1823, at Wikipedia Commons, public domain;”The Devil’s Advocate,” artistic interpretation by Bill Strain at Flickr via Creative Commons-license requiring attribution.

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File:Rembrandt Harmensz van Rijn - Return of the Prodigal Son - Google Art Project.jpgThe public and some lawyers may not realize this — but when it comes to lawyer disbarment — in most states, it’s not permanent. In Arizona and in 34 other states plus the District of Columbia, disbarred lawyers are permitted to apply for reinstatement. Which is not to say it’s easy to get back in.

Indeed, as the ABA Journal wrote last August, “Disbarred lawyers who seek reinstatement have a rough road to redemption.” According to that ABA Journal story, “While it’s not impossible for a disbarred lawyer to gain reinstatement, the odds are not in the lawyer’s favor, and few even try.”

Per a 2011 ABA Survey on Lawyer Disciplinary Systems reported by the ABA Journal, of the jurisdictions responding, only 67 reinstatement applications were approved out of 674 filed petitions, motions or requests for reinstatement or readmission.

Lawyer sinfulness.

Face of Man SP_5316Every jurisdiction takes pains to affirm how attorney discipline is meant to protect the public and the courts; instill public confidence in the integrity of lawyer regulation; and deter attorney misconduct. It’s not a criminal proceeding. Nor is it supposed to supplant a civil remedy.

And since it’s repeated so often that those who say it believe it, lawyer discipline is also not supposed to be punitive — even if for those on the receiving end it’s a distinction without a difference as they mouth “spare me through your mercy, don’t punish me through your justice.”

Besides, as the late Admiral Rickover once admonished, “If you are going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won’t.”

So 3 years and 9 days after Arizona adopted new attorney disciplinary rules modeled on Colorado’s purported “Best in Class” system, Arizona’s presiding disciplinary judge has petitioned the state’s high court to amend the existing rules so that “a lawyer who has been disbarred many not apply for reinstatement.”

Hand claspA solution in search of a problem? Who can say? And why now? But no matter, in light of the Arizona Bar’s reputation among ethics defense counsel for its prosecutorial zealotry, it’s the logically predictable terminus.

Yes, disbarment is not currently permanent in Arizona. It’s a suspension with possibility of reinstatement after 5 years. But reinstatement is uncertain, difficult, time-consuming, onerous and expensive. And depending on the nature of the suspension, some lawyers even face a rebuttable presumption of disqualification for reinstatement. “Sinners in the Hands of an Angry God” may have it easier.

Ohio, Oregon, New Jersey, Kentucky, and Indiana require that all disbarments be permanent. Eight other states, California, Louisiana, Alabama, Arkansas, Minnesota, Florida, Illinois, and West Virginia, impose permanent disbarment but only for what they deem the most egregious cases. And two other states, Iowa and Kansas, have constructively adopted a permanent disbarment policy since reinstatement there is rarer than a hen with a toothbrush.

Judges GavelProfessional death penalty.

In his petition, Judge William J. O’Neil wrote it’s not his intent “to advocate for either of the proposed changes but rather to assure both public discussion and clarity within the rules regarding disbarment.”

The petition asserts the proposed amendments are offered “to initiate a fuller discussion regarding the sanction of disbarment arising out of Rule 58, discipline matters. The amendment offers discussion points for alternative changes to the reinstatement process for disbarred lawyers.” It also asserts there’s a need for greater clarity.

Although as for the ‘clarity’ of those ‘alternative’ proposals, it’s not clear how they’re fundamentally different. One amends Rule 64 (d) to now state, “A lawyer who has not been disbarred may not apply for reinstatement.” And the other alternative, Permanent Disbarment as an Alternative Sanction, adds permanent disbarment as an additional discipline.

And quite superfluously, given the Constitutional unseemliness of imposing ex post facto sanctions on the already disbarred, Judge O’Neil further explains that he isn’t suggesting “that in the event of approval . . . that the changes be applied retroactively to those members present disbarred.” No doubt this means disbarred former county attorney Andrew Thomas can breathe easier as he plans his comeback.

Meantime, I wouldn’t bet against this sua sponte move that institutionalizes a professional ‘death penalty’ on Arizona lawyers who run seriously afoul of their professional ethical rules — in“the most egregious circumstances.” Moreover, by adopting permanent disbarment, does Arizona now aspire to place itself ahead of the “Best in Class” Centennial State when it comes to sanctioning lawyers?

I doubt, however, the folks in Colorado will much care. Disbarred Colorado lawyers already have a waiting period as long as 8 years before trying reinstatement so it might as well be permanent. No wonder, then, that former head of Colorado’s Office of Attorney Regulation Counsel John Gleason cavalierly told the ABA Journal, “My experience is that lawyers who are disbarred are generally unhappy with their work as a lawyer. They’ve probably found a position they’re happy in and have no interest in coming back. It’s a fairly low percentage of lawyers who seek reinstatement.”


Photo Credits: Rembrandt van Rijn, The Return of the Prodigal Son, c. 1661–1669, at Wikipedia Commons, public domain.

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File:Études prises dans le bas peuple ou les Cris de Paris - La Liste des gagnans de la Lotterie.jpgSpeaking of lotteries — anytime a stranger sends you email congratulations, “You’ve won!”  — hit the delete key.

Easy money come-ons have circulated online for years. All the same, a version of a well-known email scam recently ensnared an Iowa lawyer. And while he hit a trifecta of sorts, it wasn’t a parimutuel payout for picking the first, second, and third place finishing horses at Prairie Meadows.

No, Robert Allan Wright was handed a one-year suspension by the Iowa Supreme Court after falling for a variant of the advance fee fraud known as the Nigerian inheritance scam. Worse yet, he got some of his clients entangled in the same scam, too. For a particularly cruel appraisal of what befell Wright, also see “Lawyer Falls For Nigerian Inheritance Scam, Gets Suspended.”


File:419 new poster.pngThe Internet frauds from Nigeria are also called “419″ scams after the section of the Nigerian Criminal Code, which makes it a felony for “any person who by any false pretence or by means of any other fraud” obtains funds illegally.

(named for the section of the Nigerian criminal code dealing with obtaining funds illegally) – See more at: http://www.quillandquire.com/reviews/review.cfm?review_id=7599#sthash.D9wiGtQS.dpuf
(named for the section of the Nigerian criminal code dealing with obtaining funds illegally) – See more at: http://www.quillandquire.com/reviews/review.cfm?review_id=7599#sthash.D9wiGtQS.dpuf

By odd coincidence, the same evening I read about Wright’s plight, I’d picked up a new novel by Will Ferguson called 419. Unfortunately for Wright, what happened to him, however, wasn’t fiction. See No. 13–0780, Iowa Supreme Court Attorney Disciplinary Board v. Wright.”

Old time flim-flam.

File:Conjurer Bosch.jpgGet rich schemes are as old as time. This particular hustle dates back centuries some even say it has roots well before the ‘Spanish Prisoner’ swindle of the late 19th century. Coincidentally, the court’s factual summary actually has a Spanish component. The purported Nigerian inheritance consisted of U.S. currency shipped in “two trunks to Spain where the trunks supposedly came into the possession of a “diplomat” in Madrid.”

One of my first posts on this blog was published at the depths of the cratering U.S. and lawyer economy,   That was more than four years ago but no matter since I still get at least one B.S. email solicitation every week. Nowadays though, most appear to come from Asia. But no matter, the advance-fee fraud remains essentially the same and hard-up lawyers are still falling for it.

The trifecta of trouble.

Back in July 2009, I highlighted what happens to lawyers who get caught up in the advance-fee scams. They get hammered and more than once — three times, actually.

“When the bank inevitably bounces the check, it refuses payment. The lawyer has then been had. He is liable for the funds. The client somewhere in another country has disappeared. And since the ethical rules required that client settlement payments be deposited into the lawyer’s trust account, not only has the lawyer been stung by the phony client and by the bank who rarely suffers such losses but here’s the final block of salt in the gaping wound. The ever-helpful bar association will come looking for the lawyer for disciplinary sanctions prompted by the overdrawn client trust account!”

So for all lawyers — but especially newer ones going solo because they can’t find jobs — remember that the trouble with temptation is that you always get more than one chance at temptation.


Photo Credits:”The reading of lottery winners” by Anne Claude de Caylus at Wikimedia Commons, public domain;”419: the Nigerian Scam” 419 new poster.png by Sorin Mihailovici via Wikimedia Commons, released to public domain by author;”The Conjurer,” by Hieronymus Bosch at Wikimedia Commons, public domain.

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Turns out former prosecutor and ex-judge Ken Anderson only ended up serving a mere 5 days of a 10-day sentence for contempt of court in connection with the wrongful prosecution of an innocent man, Michael Morton. As though a 10-day sentence for tampering with evidence; helping hide exculpatory evidence; and engaging in prosecutorial misconduct was too much.

According to a spokesman for the Williamson County, Texas sheriff’s office, his term was reduced for good behavior.  See “How Ken Anderson was released after only five days in jail.”

So thanks to my calculator mastery, I can now amend my report that The time served by the former jurist actually amounted to just 0.0547% of the almost 9,125 days Morton spent in prison. Or as Heraclitus once wrote, “If it were not for injustice, men would not know justice.”

Soft sentence spin.

Still, I wonder if University of Cincinnati law professor and Ohio Innocence Project Director Mark Godsey is as triumphantly satisfied as he was when he spun the soft sentence and wrote “a prosecutor was actually punished in a meaningful way for his transgressions.” I guess it depends on how you define “meaningful.”

But at least Judge Anderson still has 500 hours of community service and a $500 fine. See “For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully convicting an innocent man.”

However, take heart that because you’re not supposed to mess with Texas, be happy that notwithstanding Judge Anderson’s light punishment for ruining another man’s life — that at least Texas has tough penalties for serious littering. Under Penal Code § 12.35, serious littering can get you not more than 2 years or less than 180 days in jail and a fine not to exceed $10,000.

Meanwhile back with the javelinas.

And back on the prosecutorial ranch in Arizona – where the javelinas and prosecutors roam, as previously reported, Maricopa County Attorney Bill Montgomery had opposed changes to the ethical rules governing post-conviction prosecutorial obligations. Along with other prosecutors, he believed there’s “no convincing evidence that Arizona has a ‘problem’ of wrongful convictions” or that “prosecutors have failed to take corrective action when appropriate.” 

Grunting and squealing aside — the rule was amended and becomes effective in Arizona on January 1, 2014. See “Ariz. prosecutors must now reveal evidence of convicts’ innocence” and http://www.azcourts.gov/Portals/20/2013%20Rules%20Nov/R110033.pdf


Photo Credits:”I woke up looking this good,” by Evil Erin at Flickr via Creative Commons-license requiring attribution;”Don’t Mess with Texas,” by Jamie at Flickr via Creative Commons-license requiring attribution;”javelinas,” by U.S. Fish and Wildlife… at Flickr via Creative Commons-license requiring attribution.

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There are risks lawyers take when they chance even the gentlest of criticisms of a judge. For a recent example, remember Paul Ogden, the

And then yesterday, there was a judicial misconduct case decided in Ohio. It involved Judge David Dean Evans who serves in the Court of Common Pleas of Gallia County, Ohio. The case is Ohio State Bar Assn. v. Evans.

The state bar charged Judge Evans with judicial misconduct for not recusing himself from a case where there was an admitted conflict with appointed defense counsel, a lawyer by the name of Robert W. Bright. The rule requires a judge to disqualify himself from any proceeding where his impartiality might reasonably be questioned, including in circumstances where a judge has a personal bias or prejudice against a party or that party’s counsel. 

Judges GavelHere’s what happened. While representing an indigent defendant, Bright’s client initially agreed to take a plea deal. But he later changed his mind during the plea hearing. Shortly thereafter, Bright’s client rethought his rejection and decided again to take the deal. But by then, it was too late. The judge had wearied of all the indecision and refused to accept the plea.

And apparently, he was still miffed when three days later — even after the county prosecutor and Bright jointly asked the judge to allow the plea change, Judge Evans still said, ‘no.’

“The only cure for contempt is counter-contempt.” – H. L. Mencken

People 1857By then, though, Bright had also had enough. He filed an 18-page motion asking for reconsideration while at the same time criticizing the judge’s “abuse of discretion” and his refusal to accept the plea agreement as “unreasonable and/or arbitrary and/or unconscionable.” Bright also threw in a few other criticisms about the judge’s courtroom practices.

Well, no surprise, Judge Evans didn’t take kindly to the motion and referred to it as “scathing” and demonstrative of Bright’s “bias toward and contempt for the court.” Not only did he deny the motion, but Judge Evans also ‘dropped a dime’ on Bright with the office of bar counsel referring the matter for possible attorney discipline. And for good measure, the thoughtful jurist sent along a copy of Bright’s motion.

Office Stress 62But here is also where the good judge got himself in trouble. He relieved Bright from further representation not only of the waffling defendant but “next filed entries removing Bright as appointed counsel in 63 other criminal cases — even though none of the defendants in any case had requested Bright’s removal as their counsel.

“The entry in each case stated that ‘Attorney Robert W. Bright is relieved of further obligation due to the conflict he has created with the Court’ and ‘due to the Court’s inquiry to the Office of Disciplinary Counsel, Supreme Court of Ohio regarding Mr. Bright’s conduct.”

By publicly disclosing the bar complaint against Bright, the judge ran afoul of a bar rule requiring all proceedings and related documents in such grievances to be held private.

Bad things in threes.

And giving further credence to the saying that bad things happen in threes, after losing his entire caseload — a month later, Bright was fired by the county public defender. So he not only lost all his cases — but his job — and his right to privacy concerning the bar complaint.

And that’s not to mention Bright’s 63 clients who had their lawyer shot out of the saddle by the offended jurist.

The bottom line? There’s no mention about whether or not Bright got his job back. Or if any of his 63 clients were prejudiced by his sudden removal. But at least the bar complaint was dropped.

j0321176As for what happened to Judge Evans, I am however, pleased to report we do know what happened. Overruling the Board of Commissioners on Grievance and Discipline who had recommended a stayed six-month suspension, the Ohio Supreme Court ordered “a stayed one-year suspension [from the practice of law in Ohio] because ‘a sanction more rigorous than the board’s recommendation is required for the harm caused by respondent’s improprieties.’”

Sounds fitting — but alas, only on paper. The sanction is stayed. In other words, there’s no actual suspension. It’s on hold — deferred — abeyed — on ice — conditioned on Judge Evans not committing any misconduct during the one-year suspension period. If he doesn’t meet that condition, then the stay is lifted and the one-year suspension is imposed. Meanwhile, the beat goes on.

The pointy end.

Lastly, as an insult-to-injury footnote, one Ohio Supreme Court Justice dissented in the belief that Judge Evans had “a reasonable reaction to the problem he confronted.” As a matter of fact, he thought the consent-to-discipline agreement with the stayed six-month suspension that had already been agreed to by the bar and Judge Evans was just fine.

After all, he further opined, Judge Evans is an elected official and the county’s sole judge. So if anyone should fall on their sword and be conflicted out, “it is more sensible for the attorney to give way than the judge.” Bright, after all, is just a terminable at-will working stiff — no matter if he’s “highly skilled.”

But from my vantage point, implicit in that dissenter’s collegial mind, is the belief that the preferable [or the better] man is Judge Evans. When all is said and done, it’s ‘power-to-the-people’ or so he means when he writes, “the elected judge should supersede the at-will employee.”

Ancient 19So as to which party suffered the actual injury, well no mystery there on who got the short and pointy end of that stick.


Photo Credits: “Ouch,” by jeremyfoo at Flickr via Creative Commons-license requiring attribution.

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People 7109

Caginess or coincidence? No matter. It’s all good.

Four years after the ABA made changes to its Professional Conduct Model Rule concerning the “Special Responsibilities of a Prosecutor” and eighteen days after the “Arizona Republic” ran its multi-part series on prosecutorial misconductand following much protracted consideration, the Arizona Supreme Court finally amended Rule 42, ER 3.8 that identifies prosecutors’ post-conviction obligations when they know of new evidence establishing a reasonable likelihood a convicted defendant was innocent of the offense and addressing those circumstances when a prosecutor has a disclosure obligation and a duty to investigate and to take remedial steps to rectify the conviction.

The state’s highest court also enacted a new rule, ER 3.10, “Credible and Material Exculpatory Information about a Convicted Person.” The new rule follows the same principles underpinning the rule for prosecutors and imposes responsibility on all Arizona lawyers who credibly know of exculpatory evidence to promptly disclose that “credible and material evidence that a convicted defendant did not commit an offense of which the defendant was convicted.” 

LAW AND JUSTICE 133The Comment to ER 3.10 explains: “Rectifying the conviction and preventing the incarceration of an innocent person are core values of the judicial system and matters of vital concern to the legal profession. Because of the importance of these principles, this Rule applies to all members of the Bar except prosecutors, whose special duties with respect to disclosure of new, credible and material exculpatory evidence after conviction set forth in ER 3.8 (g), (h), and (i).”

woman giving thumbs up 3 L uidNo diddling, however, on the part of the Arizona State Bar. One day after the Court’s pronouncement, the Bar emailed all its members with news of a new CLE webcast, “Post-conviction Disclosure: Changes to ER 3.8 and new ER 3.10.” It’s one hour of mandatory continuing legal education in ethics for $39.00.

Small favors. At least the Arizona Bar’s not nicking its lawyers like ALI CLE for CLE likes to do. That organization is quite ‘proud’ of its one-hour webcasts, which typically come in at just two sawbucks shy of $200.


But happily for lawyers who just want CLE that’s FREE, there are complimentary programs still available elsewhere. Along with the usual disclaimers of continued access, content and availability of jurisdictional credit, here are the latest FREE CLE updates.


Florida State Bar

Overview of Trust Accounting 2013

(1) Hour Complimentary On-demand Online CLE – Ethics


Wolter Kluwer Corporate Legal Services /CT Corporation

Delaware’s Business Entity LawsWebinar- December 4, 2013 1:00 P.M. (Eastern)

Learn about Delaware’s business entity formation and post-formation provisions.

(1) Hour Complimentary CLE


Practising Law Institute (PLI)

PLI: Seminars - Ethical Issues in Pro Bono Representation 2013 (Free)

December 16, 9:00 a.m. - 11:10 a.m.  (E.S.T.)

(2) Hours Free CLE Credit, Ethics (New York & other jurisdictions)

Troubleshooting Mortgage Servicing Problems: Regulatory Responses and Advocacy Approaches

San Francisco and Live Webcast, December 16, 2013
9:00 a.m. – 12:30 p.m. PT

(3.5) Hours FREE CLE Credit (Professional Practice in NY) Check other jurisdictions.



The Future of Trusts, Wills & Estate Planning: Predictions that May Impact Your Clients’ Income, Wealth & Lifestyle

Date: Thursday, November 21, 2013

Time: 2 PM (EST) 11 AM (PST) 12 PM (MST) and 1 PM (CST)

60-minute teleconference:

  • “How electronic wills will shape the future of estate planning.
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  • How directed trust arrangements will shape the future of investing in the next 10 years.
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  • Why services like LegalZoom will be the new norm for services providers going forward.
  • Why brick and mortar offices will become an advisors ball and chain.”

Click Here to Register Online or call 1-866-754-6477


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File:James Cagney in G Men trailer.jpg

James Cagney Never Said “You Dirty Rat . . . .

“Nobody likes a rat.” That was the money quote from the “Arizona Republic’s” four installment series on prosecutorial misconduct that ran at the end of October.

Sure Michael Kiefer’s investigative report was comprehensive and localized with Arizona cases and personalities. And yes, the incisive reporting was just edgy enough to irritate the prickly prosecutors here.

But it was the money quote uttered by Karen Clark, a local attorney interviewed for the series that underscored the problems facing the legal profession when it comes to its self-ballyhooed self-regulation. Members of the legal profession who ‘tattle’ are ‘rats.’

So much for the self-celebrated aspirational ideals and ‘purty’ prose enshrined in lawyer preambles.

Fear of consequences.

As for Kiefer’s series on prosecutors, the most telling conclusion an objective reader can draw is that in the final analysis — the adverse consequences attendant to reporting lawyer or judicial misconduct too often work against those disclosures.

CourOffering solutions, one bar counsel attorney says,We need a culture that says lawyers are obligated by rule and moral considerations alike in policing our own profession . . . where defense attorneys are not afraid to report prosecutorial misconduct for fear that the prosecutor’s office will retaliate against their clients.”  And another commentator opining on judges unwilling to report on fellow judges — calls for a judicial culture that doesn’t worry so much that “countenancing disclosure of misbehavior” undermines public confidence in the judiciary.

http://upload.wikimedia.org/wikipedia/commons/thumb/2/28/Blackstones-ratio.jpg/733px-Blackstones-ratio.jpgBut as for reining in misbehaving prosecutors, one view is that the imposition of sanctions — like overturning a conviction — is a step too far. Some courts deem it preferable to instead find just enough thin-reed justification to avoid forcing a reversal. So much for Blackstone.

The most well-known and mind-boggling instance was U.S. v. Ofshe where the Eleventh Circuit managed to uphold a conviction — even though the prosecution had invaded the privileged communications between the defendant and his defense lawyer.

And what was especially shocking was that the defense lawyer sold out his own client by covertly acting as a government informer. While still representing the defendant, the lawyer agreed to wear a recording device so that the government could listen in on his client meetings. The fruit of that electronic surveillance was then used at the criminal trial to secure his conviction. Did the court find demonstrable prejudice? Nah!

With jaw-dropping implausibility, the appellate court held, “After considering the totality of the circumstances presented in this case, we hold that the actions of the government were not so outrageous as to ‘shock the universal sense of justice.’ Therefore the district court’s denial of the motion to dismiss is affirmed.”1

Any wonder law professor Ellen Yaroshefsky declares that Judges rarely report misconduct, even though they are mandatory reporters.”

And pointing fingers elsewhere, Maricopa County Attorney Bill Montgomery rejoined to the Arizona Republic, “If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court.”

The “widely ignored” Ethical Rule.

But as it happens, there’s ER 8.3, the ethical rule2 that’s supposed to guide lawyers on this. Too bad it’s less than helpful. “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority . . . .” Seems uncomplicated and easy to understand, doesn’t it? Not when you’re guiding lawyers.

What information, for example, satisfies what a lawyer “knows” and what about a duty to investigate before reporting? And what totality of circumstances give rise to “a substantial question”?

Not surprisingly, Charles Wolfram quoted at “Self Regulation and the Duty to Report Misconduct Myth or Mainstay?,” says of ER 8.3, “Probably no other professional requirement is as widely ignored by lawyers subject to it.”

Plus the rule varies by jurisdiction. Again invoking that cheerless rodent reference, there’s “No Duty to Rat in California” says one criminal defense lawyer — whereas in Louisiana, an oft-cited Supreme Court Opinion states, “a lawyer is subject to discipline for not reporting misconduct.”3

But most of all what causes some minds pause, is the fear of giving testament to what irascible Colonel Slade in Scent of a Woman declaimed to the Baird School, “You’re building a rat ship here — a vessel for sea-going snitches.”

Four words.

Clark, who represents lawyers in state bar discipline matters, is also an expert witness on ethics. Calling them as she sees them, her four words underscore the magnitude of the problem the profession has with consistently following its ethical duty to report professional misconduct.

More significantly, the reluctance to ‘snitch’ highlights why some commentators posit that self-regulation is a myth and that the continued use of the term not only conflates all the external actors who co-regulate the profession but also “muddies the conceptual dividing line between lawyer self-restraint, professional codes that guide and monitor lawyers, and judicially-controlled discipline of the bar.”

And it’s also why still other observers make cost-benefit arguments against self-regulation altogether. “As the prestige of the legal profession has eroded, so too have the costs of being sanctioned by professional bodies. Censure by a bar association does not carry much of a social stigma when the bar itself is not viewed with respect. Rational lawyers will not spend resources to protect the reputation of their profession if there is little to protect.4

So where is the oversight? The Innocence Project’s Stephen Saloom sums it up, “Individuals, whether fellow prosecutors, defense counsel, parties, or judges, ‘don’t feel that they can report it, or they don’t know how . . .and ‘lawyer oversight entities rarely address misconduct.’”

Depressing but hardly shocking stuff. There’s that quote and more in Helen Gunnarsson’s insightful recap of a prosecutorial misconduct symposium held along with the American Bar Association’s Annual Meeting, “Panelists Examine How Prosecutors Can Be Held Accountable for Misconduct.”

At that symposium, one recommendation called for seasoned criminal defense lawyers to be integrated into bar disciplinary departments and offices of lawyer regulation. They’d bring skills, experience and most of all — a different mindset to the knee-jerk prosecutorial inclinations of bar regulatory departments investigating and prosecuting charges of attorney unethical conduct.

Protesting too much.

Lastly, a shout-out to Matt Brown at his Tempe Criminal Defense Blog for his post, “99.9996 Percent Of Prosecutors Are Better Than That,” which took down an unsurprising defensive group response from 20 local prosecutors who denounced the Arizona Republic’s series as a ‘hack job and “a smear-over to all prosecutors.” 

And yesterday, self-appointed moral guardian and county attorney Bill Montgomery had even more to say. He again beat his pulpit and his chest in indignation at the newspaper for doing “more to demean and insult the men and women responsible for holding criminals accountable . . . than it did to contribute to a meaningful discussion of capital litigation and how our justice system actually works.” 

I won’t go into the rest of Montgomery’s Op-ed, “Prosecutors’ improved training, oversight ignored” but I will highlight his disingenuous final paragraph. It’s where he picks one more bone with the investigative journalist.

Montgomery denies he’s ‘lobbying’ “on issues surrounding medical marijuana and Arizona laws protecting the unborn.” And a tad sarcastically he lectures, “I am a named defendant in lawsuits involving these issues. There is a difference between litigating and lobbying. A 10-year court watcher should know that.”

To which I refer such posturing to that farewell speech in “Blazing Saddles.”

Fact is, Montgomery is much more than just a named defendant on those issues. He was the prominent public face against the legalization of medical marijuana, engaging in several drug war policy debates in opposition.

And as for averring otherwise on ‘lobbying’ for the unborn, earlier this month, the non-’lobbying’ Montgomery “was given the 2013 Witness for Life Award for his vigorous defense of Arizona pro-life legislation, including his pending petition to the U.S. Supreme Court to hear the AZ 20 week ban.”

[1] At least the court footnoted that the prosecutor and lawyer had acted so reprehensibly it might warrant discipline. See United States v. Ofshe, 817 F.2d 1508 (11th Cir. 1987)

[2] E.R. 8.3 Reporting Professional Misconduct

[3] See In re Michael G. Riehlmann, 891 So. 2d 1239 (La. 2005)

[4] See Macey, Jonathan R., “Occupation Code 541110: Lawyers, Self-Regulation, and the Idea of a Profession,” 74 Fordham Law Review 1079 (2005). Faculty Scholarship Series. Paper 1377.


Photo Credits: screenshot of James Cagney from the film G Men via Wikimedia CommonsSelf made screen capture from a public domain film trailer; Licencing information : http://www.creativeclearance.com/guidelines.html#D2 work is in the public domain in that it was published in the United States between 1923 and 1977 and without a copyright notice; “Blackstone’s ratio,” by Kazvorpal at Wikimedia Commons under the terms of the GNU Free Documentation License, Version 1.2 o.

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For lawyers — at least, there are many morals to the same story. For one, don’t speak ill of a lawyer disciplinary commission. And for another, no matter how successful the lawyer in court or unblemished the record — don’t be ‘too’ outspoken. And most of all, never mind what passes for a lawyer’s purported First Amendment Free Speech rights — lawyers who say supposed unkind things about judges run risks.

businessman tied up uid 13After all, it’s less like American Express privileged membership and more like Judge Cardozo’s, “Membership in the bar is a privilege burdened with conditions.”

All of which takes me to the latest lawyer Free Speech beat down. It comes from the Hoosier State and more specifically, Indiana’s Commission on Lawyer Discipline.

The Commission is recommending a lawyer’s one-year suspension for criticizing a judge in an email. The Indiana lawyer is Paul Ogden who now finds himself facing the hard truth of what Norman Vincent Peale once said, “The trouble with most of us is that we would rather be ruined by praise than saved by criticism.”

When not otherwise defending himself before the masters of Indiana lawyer discipline, Ogden lawyers, teaches political science, and blogs at “Ogden on Politics.”

His case ought to concern all lawyers — even those who’ve never shed a wistful tear for the moonlit banks of the far away Wabash. It’s why Paul Ogden’s troubles merit even wider dissemination and why I obtained his express written permission to reblog his post below.


Disciplinary Commission Recommends One Year Suspension, No Right to Automatic Readmission for Sending Private Email Criticizing a Judge

By Paul Ogden

Yesterday was the deadline for submitting proposed findings of fact and conclusions of law on my disciplinary case.  Unbelievably the recommendation from the Disciplinary Commission is that for my offense of criticizing a judge in an email, I receive a one year suspension without right to be readmitted to the Indiana Bar.

Meanwhile other Rule 8.2 cases (which covers disparagement of judges) litigated by the Commission have resulted in discipline consisting public reprimands to 60 days suspension.  Apparently I am a special case.  Again, they want me suspended for a year, without right of readmission.

Executive Secretary Michael Witte

During one notable exchange I had between DC prosecutor Seth Pruden, he insisted the Commission’s actions in this case were purely about enforcing the rules, it was nothing personal to me. Of course that is not true, as evidenced by the suggestion I be suspended for a year..  Indeed in one of the documents outlining the need for a one year suspension he goes out of his way to specifically state “[t]he respondent has also published articles critical of the Commission.”  He also faults me for complaining about the fact that an attorney (a partner at one of the most politically powerful law firm in the state, a firm that I have been very critical of for not having to follow the disciplinary rules other attorneys have to follow) apparently failed to recuse himself and instead sat in judgment of me when deciding to file a grievance against me and then formal charges.

The Commission chides me for the fact I am “without evidence” to show a “grudge” the attorney and  Executive Secretary Michael Witte might have to pursue this prosecution against me.  That is an extremely disingenuous.  The Commission’s records and proceedings are kept secret.  There is no way of obtaining smoking gun evidence. My one attempt to do so, a subpoena sent to the aforementioned politically powerful law firm for communications between the Commission and the law firm, was met with fierce resistance from the Commission.  If there was nothing to hide, nothing that would show an improper influence by that law firm (and that attorney I had filed a grievance against) on the prosecution of my disciplinary case, one would think the Commission have welcomed an opportunity to show that via disclosure of the emails.  Instead the Commission hides behind secrecy at every opportunity then faults me for not having “evidence.”

If my criticism of the commission had no bearing on pursuing the charges, then why would the Commission go out of its way to mention in Monday’s filing asking for severe sanctions because I had written articles critical of the Commission and made “attacks on the integrity of the Commission and the discipline process?”  That’s completely irrelevant to the charges.  But indeed that’s what this is all about.  You criticize the Disciplinary Commission, then the Commission will make you a target.   The grievances that began this process were filed by none other than Executive Secretary Michael Witte just months after I wrote an article critical of the Disciplinary Commission going almost exclusively after small firm and sole practitioners, in particular 397 times out of 400 cases I looked at over a three year period.  I would note that grievances are rarely initiated by the Executive Secretary, i.e. only 5% of the time.

I would also note that the Commission is arguing for a harsher penalty against me because I “lack insight” into my wrongdoing.  I have the temerity, after all, to actually believe that the First Amendment protects my right to criticize a judge in a private email and refuse to back off of that stance.  Also, I am specifically cited for filing “dilatory motions” in my attempt to defend myself against this prosecution  By definition, a “dilatory motion” is a baseless motion filed for the purpose of achieving a delay in a proceeding.  There has been absolutely no delay sought by me in any of my filings or in the case at all.  The DC attorney undoubtedly knows the definition of a “dilatory motion” yet he proceeds to make that false representation anyway.  Apparently if you’re not willing to roll over for the DC and admit wrongdoing when charged with misconduct, that then becomes grounds for the DC to seek additional punishment.

My 26 years in the practice of law has seen almost exclusively two leaders of the Disciplinary Commission, Donald Lundberg and Michael Witte.  Both were appointees of former Chief Justice Randall Shepard.  While the Commission was respected by attorneys under previous leader, Sheldon Breskow, under Lundberg and Witte’s leadership the Commission has been the subject of enormous  criticism by attorneys.  The attorneys consistently say the same thing – that the disciplinary rules under Lundberg and Witte are not enforced equally, that the Commission prosecutes small firm and sole practitioners almost exclusively, and the disciplinary prosecutions have become very politicized.

While Indiana attorneys do not respect the Disciplinary Commission because of the way it has operated the past 25 years or so, there is a tremendous amount of fear.  Attorneys believe that if they dare publicly criticize the Commission, if they dare argue for reform, they

Former Executive Secretary Donald Lundberg

will themselves become a target of the Commission.  I can say from personal experience that is an absolutely accurate.  The DC, in fact, admits that I should be punished because I criticized the Commission. While the Commission argues I believe I am above the rules, it is clear that the Commission believes the First Amendment does not apply to criticism of the agency.

What I have found surprising though is the way in which the Commission prosecutes cases.  Personally, when I litigate cases, I think it is unethical to fail to inform the court of critical facts or knowingly make false claims.  Yet the Commission’s attorney has done exactly that in my case apparently without so much as batting an eye.  As example, in the second charge that I improperly tried to influence judges by engaging in “ex parte communication” by sending a letter to the Marion County judges trying to educate them about the process for, at the conclusion of the civil forfeiture cases, divvying up the civil forfeiture proceeds among the government entities.

Although the DC mentioned in its complaint that I had no cases before any of the judges to whom I sent the letter, the DC completely and I believe intentionally failed to include the critical information that I had actually copied the letters to the Marion County Prosecutor, the Indiana Attorney General, and the Marion County Public Safety Director, the very government officials involved (at trial and on appeal) with the division of those proceeds.  No one I have talked to in the legal profession thinks this charge has any merit whatsoever.  After all, judges are often educated about the law by outside sources and there is absolutely no prohibition on doing so.  Yet the Commission continues to push this completely baseless charge, disingenuously omitting key facts when necessary to try to make the charge look like it actually has some merit.  Meanwhile, the rules prohibit me from simply seeking a summary dismissal of this meritless charge.

Perhaps I shouldn’t be surprised by how the rules seem to enforcement of the rules seem to be selective.  During a conversation I had following a deposition, the DC’s counsel took the position that Rule 8.2 absolutely applies to private communications.  He said that two attorneys having lunch criticizing a judge had better be able to prove their criticism of the judge is true or they are subject to discipline. Later the Commission’s attorney later changed that position saying that the Commission was not talking a position on whether Rule 8.2 applies to private communications.  In yesterday’s filings apparently the DC again changed its position arguing that because private communications can be disseminated to a wider audience, they are also subject to Rule 8.2.

Undoubtedly the enforcement of Rule 8.2 by the Commission depends on the speaker.  If it is someone out of disfavor, the rule gets applied.  If it is someone is liked by the Commission, there is no rule violation.  Hence the constant complaint from attorneys that the Commission’s imposition of the rules is often political.  Rule 8.2 apparently does not apply to DC attorneys.  During my conversation with DC Attorney Pruden about Marion County judges not following the law regarding dividing up civil forfeiture assets, he said the problem is not that they do not follow the law, but rather the problem is Marion County judges are “lazy.”  I do believe that is a disparaging comment that Mr. Pruden cannot prove is true and, thus, is a violation of Rule 8.2.   My guess is the Commission will never charge Pruden.

Again, while I am not hopeful I am going to be allowed to continue practice law.  My fight is about paving a better future for attorneys in this state.  I hope my case is a catalyst for the Indiana Supreme Court to finally take a hard look at reform of the disciplinary process.  The Supreme Court needs to order an independent investigation of the operations of the Disciplinary Commission (including an interview with attorneys, who have their confidentiality protected lest they face reprisals by the Commission, and an audit of those grievance files maintained for years against attorneys) and make some much needed changes to the disciplinary process, including establishing statutes of limitations, requiring more transparency in Commission operations, providing a system by which attorneys can get meritless charges dismissed summarily, and requiring that only attorneys with significant judicial experience sit as hearing officers.  While personnel changes should also be made, starting with terminating Mr. Witte employment, the primary focus needs to be on changing a disciplinary process that is clearly broken.


“Disciplinary Commission Recommends One Year Suspension, No Right to Automatic Readmission for Sending Private Email Criticizing a Judge,” posted at Ogden on Politics, the personal blog of Paul Ogden, September 24, 2013. Reblogged and reposted with express written permission of Paul Ogden, October 2, 2013. (Photos of Commission officials from Ogden on Politics)

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