Wednesday, July 31, 2013

Disciplinary Commission Gave Gov. Mitch Daniels A Pass When He Publicly Attacked The Integrity Of A Judge

Former Gov. Mitch Daniels is a licensed attorney in the state of Indiana subject to the same rules of professional conduct just like any other attorney admitted to practice law in this state, although Daniels has maintained his license in an inactive status for a number of years during his public service. Unlike fellow attorney and blogger Paul Ogden, who faces the potential suspension of his license to practice law in this state because of comments he made in a private e-mail critical of a judge's handling of a probate estate matter in Hendricks County, the Indiana Attorney Disciplinary Commission took no action against then-Gov. Daniels when he didn't like a Court of Appeals' decision declaring Indiana's Voter ID law unconstitutional and publicly attacked the integrity of the judge who authored the opinion. As WISH-TV reported at the time, Daniels had particularly sharp words for Judge Patricia Riley:
Indiana Governor Mitch Daniels called the ruling "transparently partisan", and promised an appeal.  He said, "It's a preposterous decision, an extreme decision and came in this case from a judge who's been reversed before and I expect it to happen again."
The governor went on to call the ruling an act of judicial arrogance.
The Indiana State Bar Association responded swiftly to Daniels' comments by releasing the following statement:
On Thursday, Sept. 17, the Indiana Court of Appeals issued a ruling in Indiana League of Women Voters v. Rokita, the “voter ID” case, and Gov. Mitch Daniels commented on the decision and the judges who heard the case. While the Indiana State Bar Association (ISBA) recognizes that Gov. Daniels has championed the cause of judicial independence, the State Bar is nevertheless compelled to emphasize that comments such as those attributed to the governor are not helpful in advancing appropriate respect for the courts and the judicial process, and honoring the separation of powers doctrine.
The ISBA respects the governor’s, and every citizen’s, right to disagree with the decision. There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion.
What Ogden is accused of doing doesn't come close to approaching the potential harm Gov. Daniels' comments had on the public's respect for the judiciary as the state's highest elected official responsible for administering its laws and an attorney admitted to practice law in this state. Yet Ogden faces the destruction of his professional career, while Gov. Daniels goes on to be hired by the Purdue University Trustees he appointed as the university's president earning nearly a half million dollars a year. Fellow blogger and attorney Sheila Kennedy hits the nail on the head with her observations in a post titled, "Trading the First Amendment for a Law License?":
The facts are fairly simple: Ogden represented a client before Hendricks Superior Court Judge David H. Coleman. In a private email,  he criticized the Judge, opining that he had a conflict of interest. At the time he wrote the email–and again, I note that this was a private communication–the judge had already been removed from the case for failing to act within an appropriate period of time.
It is unclear how the judge even found out about the email, but he did, and demanded an apology. Ogden refused. ( Paul is one of those people who will stand on principle even when doing so will clearly cost him.) Had he apologized, that would have been the end of it. Since he didn’t–he faces loss of his license to practice law.
Think about that for a minute. A “transgression” that could be cured by a simple apology is nevertheless so serious that the Disciplinary Commission can respond by destroying a lawyer’s ability to make a living. And what is that transgression? “Defaming” a judge by criticizing him in a private email.
As a recovering lawyer, I find this seeming vendetta very troubling. As a lifelong civil libertarian, I find it dangerous.
The Disciplinary Rule prohibiting certain criticisms of courts and the justice system is there for a reason–it is meant to avoid statements that might prejudice a case, or demean the legal process and thus respect for the rule of law. Imposing that rule in a case where a lawyer has publicly cast aspersions on a judge or court can be justified–although even then, there are limits imposed by the free speech provisions of the First Amendment . . .
In this case, the argument that criticisms of the court undermine public confidence in the justice system is simply not tenable, because the criticism was not public. And a comment in a private communication, made after the judge no longer sat on the case, could hardly prejudice the outcome . . .
 The larger question, of course, is whether the receipt of a license to practice law comes with a condition that the recipient relinquish the future exercise of his or her First Amendment free speech rights. If so, those considering the practice of law might be well advised to rethink that choice.
This disparate treatment in the enforcement of rules governing attorneys is nothing new in Indiana. Former Indiana Attorney General Jeff Modisett was allowed to stand on the federal courthouse steps and tear apart a decision written by a federal court judge dismissing a lawsuit he brought on behalf of the state against tobacco companies, telling reporters words to the effect that the opinion wasn't the worth the paper on which it was written. Indiana Supreme Court Justice Mark Massa was given a pass during his campaign for Marion Co. Prosecutor when he questioned his opponent's qualifications, Terry Curry, because he had represented a child molester in a case earlier in his career. The Indianapolis Bar Association criticized the comments of both Modisett and Massa, but the Disciplinary Commission found nothing about their comments that rose to the level of a disciplinary complaint, even though their comments were made publicly and not privately as Ogden's comments were made.

Chew on these additional tidbits. In January, Indianapolis criminal defense lawyer Paul Page entered a federal courtroom in South Bend, Indiana and entered a guilty plea reached with federal prosecutors whereby he admitted to defrauding a federally-insured institution to obtain a loan for a building he purchased with former Marion Co. Prosecutor Carl Brizzi to lease to the state's Department of Child Services under a sweetheart deal with the administration of Gov. Daniels. Page's crime is a felony offense carrying a sentence of up to 20 years in prison. In May, Brizzi's former chief deputy prosecutor, David Wyser, reached a plea agreement with federal prosecutors in the Southern District of Indiana whereby he admitted to accepting a bribe in the form of a campaign contribution for his prosecutor's campaign from the father of an incarcerated woman who had been convicted of hiring another man to kill her husband. Wyser agreed to a sentence modification that sprung his benefactor's daughter from prison early in exchange for the campaign contribution. Wyser's guilty plea to a single felony count of bribery carries a maximum prison sentence of ten years. What action has the Disciplinary Commission taken against the law licenses of Page and Wyser to date? Nothing according to the Indiana Roll of Attorneys.

UPDATE: The Indiana Lawyer's Dave Stafford has a lengthy story here discussing Ogden's hearing yesterday, which was open to the public only because Ogden insisted that it be.

Here are some facts to chew on regarding the handling of this estate. You decide whether you would be satisfied that Judge Coleman handled the case properly:
  • The unsupervised estate was open for nearly five years before Judge Coleman was removed from the case after Ogden, who entered an appearance at the tail end of Coleman's handling of the case on behalf of one of the heirs, filed a lazy judge motion to remove him from the case after he failed to timely rule on a motion, leading to the appointment of a special judge, who got the case closed within about another year after continuously prodding the estate's attorney and personal representative to act.
  • The first judge assigned to the case had it for only about four months before it was reassigned to Judge Coleman, who had it for the next 4 1/2 years.
  • Under the Indiana Probate Code (IC 29-1-7.5-3.8), an unsupervised estate is supposed to be closed "as promptly as possible", or "within one year" of it being opened. If it is not, the personal representative is required to file a statement with the court explaining why the estate hasn't been closed. "Coleman acknowledged under cross-examination that he had not filed notice of an estate open longer than one year," the Indiana Lawyer's Dave Stafford reported. In Marion County, one-year deadline notices are automatically sent to the attorney and personal representative by the court. If no explanatory notice is filed with the court requesting additional time, the court will set the case for a show cause hearing and repeat that process until the estate is closed. Bob York, the attorney hearing the case for the Disciplinary Commission, claims judges never issue orders sua sponte. "York challenged Ogden on why he didn’t file motions on those matters and asked him to show a case in which a judge had issued such orders sua sponte," Stafford wrote. "It doesn’t happen," York said.
  • Under the Indiana Probate Code (IC 29-1-7.5-3.2), the personal representative is required to prepare a verified inventory of the estate's assets within 60 days after his or her appointment. In the case of this estate, no inventory was prepared until 28 months after the estate was opened.
  • There was conflicting testimony about the extent of Judge Coleman's relationship with the Carr family. Ogden's client, Randy Carr, insists that Judge Coleman "was a friend of his family who’d joined his father at Christmas parties in the past, and that his father had millions of dollars squirreled away. Robert Carr Jr. testified none of those accusations were true and that his brother has 'issues.'" "But Randy Carr had informed Harris of conflicts he said Coleman had, and Harris conveyed those concerns to Coleman," Stafford reports. "The judge declined to recuse himself, saying he could find no conflict. Randy Carr said the judge also denied his request for an outside accounting of the estate."
  • The e-mail of Ogden's that Judge Coleman found offensive, among other things, according to Stafford stated "that Coleman 'should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.'" "Ogden claimed, among other things, that the estate’s value dwindled from about $1 million to almost nothing due to improper oversight." "The opposing attorney on the trust case, Steven Harris of Mooresville, denied there were problems with the estate and instead characterized questionable disbursements as honest mistakes that were repaid when discovered," Stafford wrote. 
  • According to Ogden, the estate's attorney billed over $40,000 for his fees, while the heirs received a distribution of only about $8,000 a piece after he claims the personal representative laid waste to the estate. I would note that the attorney's fees in this case exceeded the maximum fees recommended by the Probate Committee of the Indiana Judicial Conference for supervised estates absent extraordinary circumstances and the necessity of undertaking certain transactions based on Ogden's assertions concerning the size of the estate.
  • “I don’t know of anything I did wrong on this case,” Coleman testified.


Paul K. Ogden said...

Not sure if I posted on this or as a comment on Facebook when I posted your link. I really wouldn't want Gov. Daniels to be disciplined for his speech. It's protected attorney free speech under US Supreme Court precedent. But you're exactly right...his speech which was public actually could fall under Rule 8.2. But as the US SCT has said, you cannot use disciplinary rules to infringe on attorney's free speech rights.

Gary R. Welsh said...

My point is to contrast the disparate treatment of those who are supposedly subject to these rules. A higher profile public person has a much greater impact with their words than a private attorney in a private communication, which nobody would have even known about had the person complaining not made it public.

Pete Boggs said...

If, the very people expected to uphold the law can't do the job (demonstrate familiarity with standards of their profession, beginning with the Constitution & the firs of its amendments); where does that leave the "profession?"

bjb said...

Pete, the answer to that question is revealed in the petition for review sent to the SCOTUS, without a grant, here:

It is also found in this case: