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.
After 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)