Tuesday, July 30, 2013

Star Reports On Disciplinary Commission's Complaint Against Ogden For Criticizing Judge In Private E-Mail

Fellow attorney and blogger Paul Ogden faces an attorney disciplinary complaint hearing today based on the charge that he criticized a judge in a private e-mail. Hendricks Superior Court Judge David Coleman filed the complaint against him after he refused to apologize to him after one of the recipients of the e-mail passed the e-mail to Judge Coleman. Ogden, who represented an heir in a probate estate dispute, had vented his frustration about a family member being permitted to remain in control of the estate who other family members contended was laying waste to it while it remained open long beyond the one-year statutory period provided for closing estates.

Judge Coleman, one of several judges assigned to the case at one time or another, was removed from the case after Ogden filed a lazy judge motion against him for failing to timely act on a motion he had before the Court. By the time the estate's assets were distributed, very little remained for the other family heirs. Family members had complained to Ogden that the estate's personal representative had a personal relationship with Judge Coleman, a claim he disputes. Ogden's suggestion that Coleman should have recused himself from the case was what landed him in hot water with Coleman and the Disciplinary Commission. The Star's Tim Evans has a good story today discussing the First Amendment concerns raised by the complaint against Ogden. Here are some excerpts from his story:
“I was standing up for a client who got a raw deal,” Ogden said. “As far as I can tell, this is the first time they have gone after an attorney for something said in a private context. My question is: How far are they going to go? Attorneys criticize judges all the time, and this could have a real chilling effect. This is about more than me.”
The commission does not comment on pending disciplinary cases, said Kathryn Dolan, spokeswoman for the Supreme Court.
While Ogden appears to face an uphill battle in the fight for his legal future, the First Amendment protects his speech, said Margaret Tarkington, an associate professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.
Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.
“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”
It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.
In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.
Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.
Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.
Lawrence G. Walters, a Florida-based attorney who has a national First Amendment law practice, said there are some legitimate reasons for limiting what attorneys can say, but those are primarily related to comments inside the courtroom and about pending cases.
“There’s a certain level of decorum and formality that is essential to permit the proper administration of justice,” he said. “The public has to have faith in the system, that it’s not a circus.”
Attorneys should have more freedom outside the courtroom, Walters said, “so long as it doesn’t affect the administration of justice.”
Ogden's fear that he is going to be suspended for what he wrote in a private e-mail about a judge are well-founded. The private attorney assigned to hear his case is Robert York, who Ogden says already told him at a pre-trial proceeding that he intended to seek his suspension from the practice of law even before hearing the evidence in his case. That's sort of like appearing before a judge to enter your plea and the judge telling you that you have the right to plead guilty or not guilty, but the judge had already determined that you are guilty and unless you agree to plead guilty without a trial as part of a plea agreement you will face a tougher sentence for your offense because you contested the charges against you.

I contrast Ogden's plight to the treatment of former Attorney General Jeff Modisett. When he didn't like the decision of a federal court judge in Indianapolis to dismiss a tobacco lawsuit he brought against tobacco companies on behalf of the state, he held a press conference on the footsteps of the federal court house where he tore apart the decision, telling reporters words to the effect that the decision wasn't worth the paper on which it was written. Modisett faced no formal disciplinary complaint for his actions despite strong public criticism he faced from the Indianapolis Bar Association for his actions.

In contrast, the Supreme Court publicly reprimanded former Marion Co. Prosecutor Carl Brizzi for comments he made to the press about the pending murder case against defendants accused of killing seven family members. The Supreme Court found that Brizzi violated the Rules of Professional Conduct "by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing an adjudicative proceeding and a substantial likelihood of heightening public condemnation of the criminal defendants."

In another recently concluded case, the Supreme Court publicly reprimanded Tammy Davis, an attorney in Johnson Franklin County who had blamed a judge against whom she was running in the 2012 election for the early release of a defendant who later re-offended during her campaign, an allegation disputed by the sitting judge. She was also barred for five years from seeking judicial office. Compare that to the treatment of attorney Mark Massa's criticism of Terry Curry during the race for Marion Co. Prosecutor in 2010 because he had once defended a child molester. No disciplinary proceedings were initiated against Massa, who was later appointed to the Supreme Court by Gov. Mitch Daniels.


Marycatherine Barton said...

And yet, this Robert York wants to suspend Paul Ogden for a private email he wrote, which was distributed without his permission, sedWIta3and although Ogden has a sterling record and reputation? The people deserve to be able to continue to choose Paul as their attorney if they wish, and I pray that, after hearing the evidence today, Attorney York changes his mind.

Anonymous said...

Paul should never have ran for judge or challenged the slate.

The system defends the system.

CircleCityScribe said...

Interesting and valid point here: "Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

I believe that the Constitution's first amendment absolutely requires that public criticism of public officials by the people who know them best be permitted in this country. How else can we "elect" the best judges?

LamLawIndy said...

Gary, the Davis case was from Franklin County, not Johnson County.

Gary R. Welsh said...

Thanks for the correction, Carlos.

bjb said...

Gary, I realize that you never found my case one raising concern, (vis a vis religious testing and reprisal for refusing to back down on principle) but .... well I did document what (I think) should be a very troubling current in Indiana judicial politics. Gathered here for any who wish to study how the system can work in what one Indiana attorney told me was a "perfect storm." I am glad you are standing up for Paul -- else we are picked off, one at a time and the chill is sent out to cower all the rest. http://www.archangelinstitute.org/archangel-michael/ Note the final document is a verified complaint from a Kansas licensed attorney ... and note that no complaint was ever filed against me in Kansas alleging that I took liberties with the facts. Because I did not.

Paul K. Ogden said...

Gary thank you so much for posting this and discussing my case. My case went on for 11 1/2 hours, straight through without more than a few 5-10 minute breaks. It was clear that I am public enemy #1 to the DC. It's a shame when we have people like Conour around and the DC gives him a pass for years while expending enormous resources to go after me.

Paul K. Ogden said...

Gary, I have another one. Indiana Governor Mitch Daniels in a pres conference called the ruling by Court of Appeals striking down voter ID law as “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." Governor Daniels did not get a Rule 8.2 charge filed against him. Not that I'm advocating that. It's free speech. If a judge doesn't like criticism on the bench he or she needs to get another job.

stevelaudig@gmail.com said...

Where is Modisett these days. He was always on his way somewhere. Couldn't look anyone in the eye when he talked to him. A perfect Evan Bayh clone.

Gary R. Welsh said...

If you're a member of the ruling elite in this state, Paul, you can do as you please. The laws and rules that supposedly govern all of us are apparently only enacted to keep the serfs in line.

Gary R. Welsh said...

Steve, I think Modisett works for some big firm out in San Francisco now. He couldn't get out of Indiana fast enough after he lost his last political race.

Anonymous said...

I just a minor quibble about your comment about Modisett. He didn't leave the state after losing. He never lost. Instead, he left before his term was up.

bjb said...

This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar. 11 It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law—men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the fanatical leaders of the Revolutionary government of France 12 —men like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots 13 —men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party 14 —men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it. But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. 15 This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free. 366 U.S. 82 (81 S.Ct. 978, 6 L.Ed.2d 135) In re George ANASTAPLO, Petitioner. Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

bjb said...

Were I am Indiana licensed attorney, I would nominate either Ogdon or the host at this site for this award ..... since both do more to serve justice in this state than the well dressed elitists playing inside baseball with the justice system in Indianapolis.

Here: http://www.theindianalawyer.com/lucas-send-us-your-2014-leadership-in-law-award-nominations/PARAMS/article/32022