Thursday, October 03, 2013

Nationally-Respected Legal Scholar Sides With Ogden In Disciplinary Case

Highly-respected legal scholar Jonathan Turley, who chairs the Public Interest Law section at George Washington University Law School, has weighed in on the pending disciplinary complaint against fellow blogger Paul Ogden where the Disciplinary Commission is seeking to suspend him from the practice of law for up to one year with no automatic right of reinstatement because of criticism he leveled against a judge for his handling of a probate case before Ogden had him removed from the case by filing a lazy judge motion. Turley writes at his widely-read blog that he does not believe the opinions Ogden expressed in a private e-mail about the judge should be a basis for discipline.
I have previously expressed concern over cases of discipline for both lawyers and laypersons criticizing judges. One troubling case is unfolding in Indiana where the Indiana Disciplinary Commission is recommending a one year suspension for Indianapolis attorney and blogger Paul K. Ogden, who criticized a judge in emails and refused to apologize for what he considered an exercise of free speech.
Ogden sent emails to another attorney accusing Hendricks Superior Judge David Coleman of mishandling an estate case. One particular email sent to opposing counsel Steve Harris of Mooresville said that Coleman “should be turned in to the disciplinary commission for how he handled this case.” That email is part of the position of hearing officer Robert W. York who finds that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack or respect for those who disagree with him in any way.” The case is disturbing on a number of levels including the commission’s position that Odgen should be punished because he believes he is “superior to the courts and the law” and that his criticism of Coleman was “filled with inaccurate claims and slanderous innuendo.”
Ogden insists that it was his criticism of the disciplinary process that led to the charges:
I have long felt that one of our responsibilities as attorney is to speak out about the need for reform of our legal system. While I have broached many topics for reform in the legal system, many times on this blog, it was not until January of 2011 when I first decided to touch the third rail and publish an article on the disciplinary process. That story included my research that during the last three years when the Disciplinary Commission was headed by Donald Lundberg, 397 of the 400 published disciplinary cases had been against small firm attorneys and sole practitioners. It was just a few months after that story that the relatively new Executive Secretary of the Commission Michael Witte began filing grievances against me which ultimately resulted in the charges that were heard yesterday.
I tend to favor the free speech values in such cases. In the Indiana, I fail to see how emails criticizing judges should be the basis for discipline. This is a matter of professional opinion. What do you think?
A highly-respected Indiana attorney, Ted Waggoner, who publishes an informative blog, Lawyers With Troubles, ponders the potential impact of Ogden's case on the free speech rights of the clients represented by attorneys.
If you are not a lawyer, you ought to consider where your rights to speak freely are if the lawyers lose their rights.


Pete Boggs said...

Establish an independent board to review decisions of the disciplinary commission. There are law professors in Indiana who would likely participate.

Gary R. Welsh said...

The Supreme Court is the governing body that reviews decisions of the DC. I don't see the court delegating away that oversight.

Paul K. Ogden said...

Nothing against law professors, Pete, but many of them have never practiced law a day in their life.

Marycatherine Barton said...

Let's hope that our Disciplinary Commission agrees with these written remarks of Jonathan, and gives Paul a break.

CircleCityScribe said...

The Indiana Constitution states: "Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible."

The court, being a branch of state government and subject to the Indiana Constitution should not put itself above the law of The State!

Those in the know are the best to criticize government and hold it accountable to The People. If The Supreme Court disregards our state constitution, then what is next? The court declaring itself Almighty, then legislating from the bench?

Bill said...

In addition to First Amendment, an Indiana constitutional defense has been made. Even if the Supreme Court holds that NYT v. Sullivan is not the correct standard under the First Amendment (which I disagree with), it would be roped back in under Art. 1, Sec. 9.

Anonymous said...

I'm glad that Paul Ogden took a stand for first amendment rights for attorneys. Dan Brewington, a blogger, is waiting for the IN SC to decide if they will accept transfer in Brewington's first amendment case. Brewington was released from Putnamville Sept. 5 and the IN SC Court held oral argument, Sept 12, and now they are deciding if they are going to accept transfer. Brewington, also, criticized a judicial decision on his blog.
Sue Brewington

Pete Boggs said...

Mine was something of a mock suggestion. But why wouldn't legal scholars find the exercise instructive (re: freedom of speech).

CCS makes an illuminating observation.

Unigov said...

Sort-of similar thing in Pennsylvania:

The Indiana court system is corrupt and fascist, by the latter I mean that whatever the General Assembly does, is never questioned by the court.

Betty Mydland said...

THANK GOD there is someone in this state that is willing to take a stand. As a retired Legal Assistant for the Indiana Department of Child Services, I know all to well the effects of bad judges on the bench. GO PAUL

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