Friday, September 13, 2013

More On Indiana Lawyers Not Having Free Speech Rights: Attorney Suspended For Referring To Mother As "Illegal Immigrant"

Indiana attorneys beware. If you refer to an opposing party as an "illegal alien," you may face suspension from the practice of law by the Indiana Supreme Court. Martinsville attorney Joseph Barker learned that the hard way. The Supreme Court this week unanimously affirmed a disciplinary hearing officer's recommendation of a 30-day suspension of Barker, who argued to the Court that referring to the mother of his client's child as an "illegal immigrant" in a letter to opposing counsel was legitimate advocacy in explaining why she "doesn't understand what laws and court orders mean" given her repeated refusal to allow his client to exercise his parenting time rights as ordered by the court. The Supreme Court disagreed.
[R]egardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantive purpose other than to embarrass or burden Mother. The Court therefore concludes that Respondent violated both Rule 4.4(a) and Rule 8.4(g) as charged.
Although Barker has never previously been disciplined in his 45-year history of practicing law in Indiana, the Court felt suspension was required because he "has not apologized to Mother." The opinion doesn't indicate whether Barker's assertion of the Mother's legal status was factual. The hearing officer given the additional task of hearing Barker's case was Marion Superior Court Judge Kimberly Brown, who his is herself the subject of a disciplinary complaint initiated against her by the Judicial Qualifications Commission, which is seeking her immediate removal from the bench based on allegations of delay and dereliction of judicial duties and creating a hostile work environment for court staff, attorneys and subordinate judicial officers, among other things.

The Indiana Law Blog's Marcia Oddi comments on the Supreme Court's Order suspending Barker for 30 days for calling the Mother an illegal alien: "Notably, a Westlaw search shows "illegal alien" used 57 times in Indiana cases. Some within recent months: Supreme Court (June 25, 2013, ftnote on p. 10); Court of Appeals (July 30, 2013, p. 8)." As an immigration lawyer, several years ago I was counseled by immigration advocates to use the term "undocumented" rather than "illegal alien." Later, it was suggested the term "out of status" was less offensive than "undocumented." Now we're counseled to refer to aliens in the country illegally as "aspiring immigrants." It's difficult to keep up on the politically-correct usage of words in this country.


Anonymous said...

Who would ever choose the legal profession as a line of work?

You take on over $100K in debt for a degree that teaches you little. You can't find a job once you get the degree. Once out of school, you have to take a test to be allowed your job, because the degree, in itself, is worthless. Once you clear all of those hurdles, you can be thrown out of your career if you say the slightest thing a judge doesn't like.

Skip college. Learn welding.

Anonymous said...

SO, IS the mother an illegal? It is important to know.

Gary R. Welsh said...

As I noted, the opinion doesn't indicate whether the assertion was factual. If I'm reading the opinion correctly, her legal status is irrelevant to the Court's analysis in this case. The attorney's discipline is based upon imposing an issue that the Court found was not legitimate advocacy as it related to her violation of the court's child parenting time order.

Anonymous said...

What if you say to your opposing counsel "Your client is acting
like a greedy pig," when the opposing party is Muslem or Jewish?

I'd be curious as to who turned this attorney in.

Have we reached the point where someone runs to the Disc. Comm. everytime someone says something in bad taste?

Pete Boggs said...

What are the DC & ISC doing about the 57 other cases? Or, is it politics rather than legitimate operation or erudite consistency, that the public is paying for?

Anonymous said...

Did you see Ogden's story about the attorneys getting disbarred for filing a motion to recuse?

The walls came down on America about 30 years ago, and 9/11 gave them the rest of what they wanted.

Now that they have everything in place, they're making their move.

America has now fully entered a very dark phase. We may not be a single country when we emerge from this.

Septly said...

I read the opinion and I agree with the Court.

An attorney is supposed to conduct himself as a professional, and this require him to follow the stated rules of professional conduct, and yes, those rules do properly limit his ability to exercise free speech (e.g. an attorney has a duty of confidentiality and cannot just disclose client-related facts without the client's consent).

Making unfounded (there is no proof offered the attorney knew of the mother's immigration status) accusations that a person is committing a crime simply for the purpose of being a jackass is not conducting onself in accordance with the rules of professional conduct for an attorney.

If the issue is that the attorney felt the mother didn't understand Enlgish and this is why she supposedly coudn't follow a court order, then he should have said so. But, accusing her of a crime without any evidence and just for the purpose of shooting off a pithy little letter to opposing counsel is not acceptable.

We do not need such people practicing in the profession of law.