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Posts Tagged ‘lawyer free speech’

Last month, an Arizona psychic was at a restaurant having lunch when a car crashed through the window, threw him up in the air, and pinned him against a wall. “I didn’t foresee it happening,” joked injured psychic Blair Robertson after the accident. See “Arizona psychic injured when he ‘didn’t foresee’ car crash.”

Whether or not you believe in clairvoyance, you don’t need psychic powers to foresee that state bars without fail welcome their own collisions with the liberty interests of their members. It’s integral to the “do-gooder” mentality endemic among the “moral busybodies” running state bar associations.

“Those who torment us for our own good,” said C.S. Lewis, “will torment us without end for they do so with the approval of their own conscience.” 

Do-gooders.

https://lawmrh.files.wordpress.com/2017/06/travel-tourism-18.jpg?w=1000&h=The latest do-gooder intrusion comes from a surprising quarter, the State Bar of Nevada. At one time, the Nevada Bar could be characterized by a laissez-faire attitude consistent with Nevadans’ strong independent, libertarian streak. But oh, how times have changed.

Last year, in a misguided effort grounded on anecdotal conjecture about supposed prevalent substance abuse and mental health problems among Nevada’s lawyers, Nevada’s Bar Governors petitioned the high court for another mandatory hour of annual continuing legal education in substance abuse prevention and mental health.

Continuing legal education has never been proven it makes lawyers more competent or ethical. Just the same, the Nevada Bar thought an hour of mandatory substance abuse/mental health CLE would help make lawyers abstemious and healthy-minded.

And not satisfied with only that moral meddlesomeness, the board next appointed a task force to study whether Nevada lawyers should pay more to practice by following the Oregon Bar’s improvident model of forced professional liability insurance. Oregon’s insurance mandate currently compels lawyers to pay a hefty $3,500.00 annually for the merest nominal coverage.

https://lawmrh.files.wordpress.com/2017/06/people-16688.jpg?w=163&h=155At Revenge of the Do-Gooderin The American Thinker, Scott Boerman explained what animates the do-gooder is “a great desire to cure humanity’s ills and imperfections with solutions that invariably focus on controlling other people’s property and productivity. Not to be confused with real volunteers and philanthropists — who use their own skills and wealth to directly help a favored cause — the do-gooder uses only his brain to decide precisely what everyone else what should do with their abilities and wealth. And because the do-gooder is so confident that his plans are good for humanity, he strives to impose his will with a stick, be it regulatory, monetary, or via public brow-beating.”  

An unconstitutional speech code.

Nevada’s Bar, however, may have finally reached the apex of do-gooding thanks to a petition filed May 8th asking the state supreme court to adopt the new ABA Model Rule 8.4(g) which amends Nevada Rule 8.4 by adding an entirely new subsection (g). It reads:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of lawThis paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

No jurisdiction has yet adopted the ABA 8.4 (g) model rule concoction passed last fall. Nevada hopes to be first.

Meanwhile, the amendment hits Boerman’s do-gooder regulatory, monetary and public brow-beating trifecta. Violations mean notoriety. Regulatory sanctions impact a lawyer’s ability to earn a living.

Academics like UCLA Law Professor Eugene Volokh and South Texas College of Law Professor Josh Blackman have weighed in against the proposed rule on constitutional grounds. The Attorneys General of Texas and South Carolina have also officially opined that a court would likely conclude ABA Model Rule 8.4(g) not only amounts to an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys but it’s also unconstitutionally overbroad and void for vagueness. See Opinion No. KP-0123, Attorney General of Texas and 14 South Carolina Attorney General Opinion.

Other commentators contend that by only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule is an unconstitutional content-based speech restriction. Others argue attorney conscience rights are also adversely implicated.

Professor Blackman further raises separation of powers problems when bar disciplinary authorities lacking the “boundless discretion over all aspects of an attorney’s life” nevertheless attempt to regulate conduct beyond their legal power or authority.

More bar complaints.

But the real upshot is heightened lawyer liability when state bar disciplinary police are given unprecedented new powers to punish lawyers for conduct not directly connected with what ethical rule 8.4 already prohibits, which is misconduct while representing a client or implicating fitness to practice or prejudicing the administration of justice. The new rule enlarges the scope to include social conferences, bar association activities and private speech far removed from providing actual legal services.

As Professor Blackman further wrote in The Georgetown Journal of Legal Ethics about Model Rule 8.4(g):

“Lectures and debates hosted by bar associations that offer Continuing Legal Education (CLE) credits are necessarily held “in connection with the practice of law.” Lawyers are required to attend such classes to maintain their law licenses. It is not difficult to imagine how certain topics could reasonably be found by attendees to be “derogatory or demeaning” on the basis of one of the eleven protected classes in Rule 8.4(g).

Blackman lists sample topics chosen as he says for their “deliberate provocativeness” where a lawyer attendee might subject herself to discipline since the speaker “reasonably should know” that someone at the event could find the remarks disparaging towards one of the eleven protected groups.” Here are a few:

“● Race—A speaker discusses “mismatch theory,” and contends that race based affirmative action should be banned because it hurts minority students by placing them in education settings where they have a lower chance of success.
● Gender—A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
● Religion—A speaker states that the owners of a for-profit corporation who request a religious exemption from the contraceptive mandate are bigoted and misogynistic.
● National Origin—A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
● Ethnicity—A speaker states that Korematsu v. United States sas correctly decided, and that during times of war, the President should be able to exclude individuals based on their ethnicity.
● Sexual Orientation—A speaker contends that Obergefell v. Hodges was incorrectly decided, and that the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.”

All of which means an amended Nevada Rule 8.4 will unwisely empower a mandatory bar to extend existing lawyer First Amendment encroachments upon new terrains of unconstitutional discipline.

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The Nevada Supreme Court invites written comment from the bench, bar, and public regarding the proposed amendments. The Hearing date is July 17, 2017, at 2:30 p.m., Supreme Court Courtroom, 408 East Clark Avenue, Las Vegas, Nevada 89101. The Comment deadline is July 5, 2017, at 5:00 p.m., Supreme Court Clerk’s Office, 201 South Carson Street, Carson City, Nevada 89701.


Photo Credits: “Psychic,” by The She-Creature at Flickr Attribution;  “Satisfaction,” by Walter Kramer at Flickr Attribution; “aaaaaaaaaahhhhhhhh,” by Marco Boscolo at Flickr Attribution;”Tread Upon Now What?” by John Eisenschenk at Flickr Attribution; “kindness, persuasion, punishment,” by Meagan Fisher at Flickr Attribution.

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Last October, I reblogged a post by Indiana lawyer Paul Ogden who was then facing a one-year suspension for a private email criticizing a judge.

File:1849 - Karikatur Die unartigen Kinder.jpg

Wikimedia Commons/Public Domain

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/8/88/Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg/319px-Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg

Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

LAW AND JUSTICE uidThis past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

Caucasian businessman pointing finger beside window uidThe Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

File:Freespeech.jpg

Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, The Indiana Supreme Court Hands Down Decision,” he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst” for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Laughing Jackass 10952161246Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

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Talk about timing. No sooner did I say something nice about a state bar president when the following month he’s in hot water. Call it the burden of irreverence. I’m referring to Nevada State Bar President Alan J. Lefebvre. He’d been on a tear of late in the Nevada Bar’s normally boring monthly lawyer magazine.

As bar president, Lefebvre gets his own column, the “President’s Message.” And I’d given him an atta-boy for his unprecedented criticisms of the state of legal education and especially, for his remarks about the unauthorized practice of law. More recently, he’d decried the state’s medical marijuana law calling it reefer madness.

Catherine Cortez Masto.jpg

Nevada Attorney General Catherine Cortez Masto

But what was he thinking when he decided to go editorially commando with his latest President’s Message: Dereliction of Duty … Or is it Rule by the Guardians?”

Unhappy with Nevada Attorney General Catherine Cortez Masto’s decision not to defend Article 1 Section 21 of the Nevada Constitution, Lefebvre offered up his ten cents’ worth of opinion and earned himself back $100 dollars worth of grief. Section 21 is known as the “Limitation on recognition of marriage.” It was passed 14 years ago and states, “Only a marriage between a male and female person shall be recognized and given effect in this state.”

Lefebvre’s arguments, however, were mostly legalistic and reminiscent of the 2011 brouhaha when King and Spaulding backed out of defending the federal Defense of Marriage Act.

For the record, I disagree with him on the merits. And until the US Supreme Court steps in, so do the courts. As of last week, with state officials in Oregon and Pennsylvania opting like Cortez Masto not to challenge court decisions overturning bans on gay marriage, there are now 19 states where same-sex couples can be granted legal recognition. See “SameSex Marriage Supporters Keep Up Their Winning Streak.”

Angry businessman yelling into bullhorn 1Speaking his mind.

But no matter the substance — damn him for his “tone” or so we’re supposed to believe from those “powerful, vengeful people among the elite” Lefebvre ‘disrespectfully’ opined about. So much for candor, for speaking your mind — and for hanging yourself with the PC police.

At least Nevada’s soon-to-be-gone bar el presidente belatedly learned albeit at the end of his term why state bar presidents confine their bar magazine epistles to insipid interjections, inoffensive insights and doggerel defenses of the self-satisfied status quo.

Coincidentally, about the same time Lefebvre was stepping on himself in Nevada, his counterpart in Arizona was innocuously blathering about diversity in his own presidential column. Doubtless he was prompted by the loony Arizona Legislature’s attempted passage of SB 1062, a bill that allowed businesses to assert their religious beliefs to deny service to gay and lesbian customers.

But unlike the non-wishy-washy Lefebvre, the Arizona honcho didn’t say anything about the legislation let alone anything overtly or substantively controversial. Instead it was the standard mealy-mouthed bar presidential schtick — the usual cheerleading self-congratulation about how great the state bar is in Arizona.

Boy with his hands on his face uidLeastwise the sycophantically impressed Arizona bar magazine editor gushed and saluted his president for not writing about a controversial topic in a member magazine. Like playing it safe takes courage.

Perhaps the bar prez was mindful of running afoul of Keller v State Bar of California, which is ‘supposed’ to keep mandatory bars from engaging in ideological political activities with member’s compulsory dues.

Objecting over style but really mad about substance.

So back in Nevada, faculty and staff members at Nevada’s Boyd School of Law were via open letter galvanizing against“the tone” of Lefebvre’s commentary. And with their own immoderation, criticized him for his purported ‘incivility’ over Cortez Masto’s unwillingness to defend the state constitution. Imagine that,

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/0/03/Book_of_Snobs_XVIII-page_69.jpgBut I don’t for a second believe their objections were merely about style or lapsed social graces. No — bar presidents aren’t supposed to weigh in on controversial topics — at least not those the legal establishment disagrees with. Moreover, methinks some faculty members were already miffed at Lefebvre for his prior Op-ed criticisms of law schools generally and of “the law student debt scandal.”

And not like he’d singled out Boyd for any opprobrium. Indeed, as I recall, he rolled over and offered not a smidgen’s worth of reproach of the Silver State’s only law school. In fact, he contorted backwards and complimented the law school dean. File this under “no good deed goes unpunished.”

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https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/c/c0/Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg/448px-Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg“RESPONSE BY MEMBERS OF THE BOYD SCHOOL OF LAW FACULTY AND
STAFF TO ALAN LEFEBVRE’S “MESSAGE FROM THE PRESIDENT”

“As members of the faculty and staff of UNLV’s William S. Boyd School of Law, we were dismayed to read the May 2014 Nevada Lawyer column by Alan J. Lefebvre, written in his capacity as President of the State Bar of Nevada. We fear that the tone of Mr. Lefebvre’s undignified column brings disrespect on the Bar and undermines principles of professionalism that we endeavor to instill in our students.

“Mr. Lefebvre’s ostensible subject was Nevada’s prohibition on same-sex marriage. He disparaged the conclusion by Attorney General Catherine Cortez Masto and endorsed by Governor Brian Sandoval that the ban cannot be defended in federal court. There are reasonable debates to be had about how our state’s officials should respond to a rapidly shifting legal landscape. But such debates require a climate of mutual respect. The mission of the State Bar of Nevada is, in part, to “elevate the standard of honor, integrity, and courtesy in the legal profession” and “to promote a spirit of cordiality” among lawyers. In our roles as faculty and staff at Nevada’s only law school, we want to pass these values on to our graduates. It is thus regrettable that Mr. Lefebvre’s essay consists largely of insults, ad hominem attacks, sarcasm, and sectarian references that are simply inappropriate for the leader of an important institution in a vibrant and diverse state.

“We recognize that issues like marriage equality naturally inspire passionate responses. But in the legal profession passion must be expressed with dignity and thoughtful analysis. Mr. Lefebvre’s column was lacking in the civility that should guide the behavior of every Nevada attorney. It is a serious disappointment for such indignity to emanate from the leader of the state bar.”

_____________________________________________________________________________________

Poster2Blogger, Boyd faculty member and letter signatory Professor Nancy Rapoport also posted exceptions to the strident solitary defense Lefebvre garnered from Ed Whelan at National Review Online entitled “Nevada Law Profs (and Others) vs. Rule of Law—Part 1 ….

Besides objecting to Lefebvre’s “tone,” Professor Rapoport also called Whalen out on his ‘disrespect.’ Oxymoronically, she advocated passionate politeness or was it polite passion? The professor even offered to debate Whalen — privately or publicly.

Piling on.

Air Bourne.gifRather incongruously, the Nevada Bar’s Board of Governors was compelled to pile on notwithstanding there already exist boilerplate disclaimers in the magazine that “Appearance of an article, editorial, feature, column, advertisement or photograph in Nevada Lawyer does not constitute an endorsement by Nevada Lawyer or the State Bar of Nevada unless specifically identified as the policy of the State Bar” and that “the views expressed are those of the authors.”

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/5/5a/Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPG/320px-Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPGI guess Keller, the faculty letter, and complaints from interest groups forced the Board to back the PC bus tire over their president. Thursday afternoon, they sent the following blast email to their members.

______________________________________________________________________________________

“State Bar of Nevada
Statement from the Board of Governors

“To all members of the State Bar of Nevada:

 “The views expressed in the President’s Column in the May 2014 issue of the Nevada Lawyer do not represent those of the Board of Governors, its individual members, or the State Bar of Nevada as a whole.

“The State Bar of Nevada and the Board of Governors embrace and welcome viewpoints of every kind and the Board assures all of our members that diversity and tolerance are valued and respected by the State Bar.

“The Board of Governors assures all members of the Bar and the public that the State Bar of Nevada does not support any use of the President’s Column for political statements. The Board has a policy that requires the State Bar President to refrain from using the Nevada Lawyer to advance personal political viewpoints.

“The Board of Governors assures all members that we will be diligent in representing you in an unbiased manner.”

______________________________________________________________________________________

Oh the ironies.

Most lawyers I know don’t bother reading the presidential pabulum published in bar magazines. So ironically, but for the outsized attention generated by law school faculty and staff, very few would’ve noticed Lefebvre’s commentary.

photoThe even greater irony, however, is that as it is, lawyers don’t have the Free Speech rights everybody else has. Lawyer free speech is limited by ethical rule —  a topic I’ve often posted on, e.g., here and here and here. So it’s sad that when lawyers dare to state their opinions in such public ways, they need to also remember to duck before the first shoe gets thrown.

And finally, these days the term civility gets bandied about a lot. And yet civility is no longer an abstract principle but has come to mean what’s subjectively polite in the eye of the beholder. But unfortunately, the extension of aspirational courtesies and respectful considerations has become increasingly dependent upon who’s the one being gored.

http://www.lamed.blogspot.com/2006_01_01_archive.html

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Photo Credits: “Danger: Hot Water Will Scald!” by Wesley Fryer at Flickr via Creative Commons license requiring attribution; Catherine Cortez Masto, State Attorney General of Nevada, at Wikipedia Commons, public domain; “wise monkeys,” by Thunderchild7 at Flickr via Creative Commons license requiring attribution;Engraving on wood by W. M. Thackeray himself, for the first edition of The Book of Snobs. Chapter XVIII, “Party-giving snobs” Mr Snob and Miss Smith, at Wikimedia Commons, public domain;”Officer writing a letter,” attributed to Gerard ter Borch at Wikimedia Commons, public domain; Air Bourne.gif by Matthew Korklan at Wikimedia Commons, public domain; “tata mini bus rear wheel” by Biswarup Ganguly at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license;”Speak No Evil,” by Theron LaBounty, notanyron, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; “this cow has an itch,” by Brent Moore at Flickr via Creative Commons license requiring attribution; bull goring at www.lamed.blogspot.com

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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.

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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.

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“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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