On October 14, 2010, the state's Inspector General filed a complaint with the Ethics Commission, alleging that Respondent had violated conflict of interest rules by participating in IURC decisions involving Duke during the Relevant Period. The Ethics Commission issued its Final Report on May 12, 2011, in which it determined that Respondent had violated Ind. Code § 4-2-6-9, imposed a penalty of $12,120.00 (triple the amount that he obtained in increased salary during his employment at Duke), and banned Respondent from future employment with the State of Indiana. Respondent filed a Verified Petition for Judicial Review in the Marion Superior Court, which affirmed on January 25, 2012.
Why the leniency? As the opinion explains:
The parties cite no facts in aggravation. They cite the following facts in mitigation: (1) Respondent has no prior disciplinary history; (2) Respondent was cooperative with the disciplinary process; (3) Respondent has fully complied with the order issued by the Indiana State Ethics Commission; (4) Respondent could not independently screen off docketed cases; (5) Respondent did not testify about his communications with Duke during the Relevant Period based on statements during that period that Duke did not intend to consider attorneys from the IURC for the position; (6) an internal IURC audit concluded that there was no evidence that Respondent exerted undue influence in his decisions in Duke cases; and (7) Respondent made an effort to comply with the state ethics rules applicable to the IURC. The parties state that Respondent believed that, under the Ethics Commission's Decision No. 10-1-7, it was necessary to screen off cases only after being contacted by a utility in response to the submission of a resume.Meanwhile, fellow attorney and blogger Paul Ogden is facing a suspension of his law license for at least one year with no automatic right of reinstatement for defending his right to criticize in a private e-mail a judge's handling of a probate matter that dragged on for years until the estate had been dwindled to practically nothing before the judge was removed from the case as a result of a lazy judge motion filed by Ogden. If the Supreme Court accepts the hearing officer's recommendation, Ogden's legal career is effectively ended.
The Court also notes that Respondent has already suffered considerable penalties for his misconduct, including a fine of over $12,000 and banishment from any future state employment. Under the American Bar Association's Standards for Imposing Lawyer Sanctions (as amended in 1992), the "imposition of other penalties or sanctions" may be considered a factor in mitigation. See Standard 9.32(k).
Hat tip to Indiana Law Blog.
So the Disciplinary Commission agrees to a public reprimand of a government official/attorney who engaged in a very serious conflict of interest that may have extremely harmed the public and they want to suspend me for a year for criticizing a judge in a private email? I'm sure the Commission pushing for a year suspension for me has nothing to do with the fact that I am the No. #1 public critic of the Commission. (Most other attorneys are fearful of speaking out lest they become the next target.) I'm sure it was just a big coincidence that the Commission's Executive Director Michael Witte didn't file his grievance against me until I wrote my first article criticizing the Commission and asked for an investigation. After all, the evidence he relied on to file the grievance had been known by the Commission for months and he didn't act on it ....until I wrote the critical article.
ReplyDeleteShowing contrition is the key, Paul.
ReplyDeleteSo Scott Storms was actually a dirtbag with his law license and gets a wag of the finger, while Ogden was a zealous advocate for his client and gets bounced?
ReplyDeleteHow does this disparate treatment serve the public or improve the public's perception of lawyers?
Don't you first have to do something wrong to someone in order to feel contrition?
ReplyDeleteOtherwise, it's as empty as tonight's television drama.
Gary, you are exactly right. If you insist on a trial, if you insist on the DC proving its case, you get hit with the "lack of insight" claim and you get more punishment. This is despite the Judge Young disciplinary case which says that a court can't publish someone more because they choose not to plead guilty and insist on their right to a trial.
ReplyDeleteAnon 3:21, the Rule 8.2 cases are invariably written as if the discipline of the attorney criticizing the judges to protect the public. But those cases are protecting the judge and the judiciary from criticism, not the public. And they have an enormous impact on free speech among attorneys. Indiana is the most aggressive state in the country when it comes to sanctioning attorneys for criticism of judges. The effect is that attorneys in Indiana are terrified if they say anything critical about a judge, in any forum, they are the next target of the Commission. What is being done in the name of Rule 8.2 has a major chilling effect on attorney free speech and it hurts the public because attorneys are terrified of speaking out about judicial misconduct or incompetence.
ReplyDeleteFollow the appointments, the departures and then hopefully,,,,the DOJ intervenes...Pay to play goes way back boys...Keep it up Gary...
ReplyDeleteIt's definitely different here in Indiana. I have a friend up in Michigan who practices law and also blogs. She says whatever is on her mind about judges and other attorneys. Some of her stuff is way over the top, and she has a large national following on her blog. I e-mailed her once expressing concern that she was going to be disciplined for attacking judges and other attorneys the way she does on her blog. She very matter-of-factly said she had nothing to be concerned about because, unlike Indiana, attorneys in Michigan still have the right to free speech.
ReplyDeleteGary Welsh: you need to allow anonymous entries...We feel for you and for others that have been abused, denied justice, or whistle blowers to react... or died for their convictions...Seriously consider this to your site...Swim with the rest of us...View the source and build trust...
ReplyDeleteAttention all state and government workers in Indiana! Our state has become so corrupt and so off the rails their is but one thing left to all men and women of intelluctal and moral ability! It is this. ASAP obtain work or move somewhere else but cease as soon as possible from being a employee of the state in any capacity! The legacy of Keith Bulen, Mitch Daniels, Dick Lugar and Even Bayh has now become so much the only way to stop it is to stop the motor of the Hoosier State! Refuse to lend the cesspool that is Indiana profit from your talents and abilities any longer! Let them wallow in the mess they have created! And then when the looters have fallen remerge to reclaim this once proud state the boyhood home of Lincoln! Remember human beings are ends in and of themselves with a moral right to pursue their own lives and happiness! Break the chains! Set the captives free! If the hacks and bureaucrats think they are superior to us ordinary mortals let them prove it! Do you hear us Jim Atterholt!
ReplyDeleteGoing Galt ..... yes, my own experience with this very corrupt state judiciary recommends as well. This is my first time posting on this thread.
ReplyDeleteThey cracked Ogden because he didn't grovel before the Commission. They use "lack of remorse" as a justification to impose harsh penalties. Even if Ogden would have fallen to his knees and repented his sins to the Commission, they still would have cracked him claiming he wasn't sincere. The same thing happened to Dan Brewington. Brewington served 2.5 years in prison because he criticized a judicial process and showed no remorse. He would have been lying if he said he did. They said Dan was a bad candidate for probation because he would write about the probation department as well. Then the appellate court ruled that Brewington’s statements of opinion, even if true, are still considered criminal threats to the judge if the judge claims the opinions cause him fear. These are the bullies on the playground who run to the principal's office the first time someone stands up to them. They launch full scale assaults people who they think pose a threat to their operation. In Dan’s divorce decree, they took away his ability to see his children because they said he had severe ADHD, his writings were confusing and difficult to follow, he couldn't communicate with people, was irrational, etc... Then, despite all the communication deficiencies they cite as a reason Dan couldn't be a parent, they claim he was a skillful and clever manipulator who carefully disguises threats. The prosecutor claimed Dan was a threat to the United States judicial system. Despite losing every issue in his divorce and spending 2.5 years in prison, they claim Dan is a master manipulator despite not being able to demonstrate anyone in the system who he has successfully manipulated. They claim the only people who believe Dan are disgruntled parents of divorce and members of the general public whom Dan has manipulated into thinking there might be some less than honorable individuals in the Indiana Court System. The current argument the State has before the Indiana Supreme Court in Brewington’s appeal is they want to treat cases like Brewington’s on a case by case basis because only the prosecutors and courts are smart enough to figure out if someone is making hidden threats against the prosecutors and the courts. It’s been almost 6 months since oral arguments and still no decision.
ReplyDelete(BTW, the prosecutor in Dan’s case made him the target of a grand jury investigation just 5 days after the Disciplinary Commission dropped Dan’s complaint against the prosecutor.)