Tuesday, December 31, 2013

Hearing Officer Recommends One Year Suspension Without Automatic Right To Reinstatement For Attorney's Criticism Of Judge

The hearing officer presiding in the matter of the attorney disciplinary action of fellow attorney and blogger Paul Ogden has recommended to the Indiana Supreme Court that he be suspended from the practice of law for one year without right to automatic reinstatement for critical comments he made in a private e-mail communication about Hendricks Superior Court Judge Daniel Coleman's handling of a probate case in which Ogden represented one of the heirs of the estate. Hearing officer Robert York concluded that the comments made by Ogden were untrue and made without regard for the truth in violation of Rule 8.2(a) of the Indiana Rules of Professional Conduct, which provides that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” York rejected Ogden's defense that his statements about Judge Coleman's handling of the estate case were protected by the First Amendment. Here are the pertinent free speech standards York says applies to attorney statements regarding a judge (i.e., the Dixon standards):
  • Lawyers are completely free to criticize the decisions of judges. As licensed professionals, they are not free to make recklessly false claims about a judge's integrity.  
  • The limits on professional speech by attorneys are not coextensive with the limits of the First Amendment to the Constitution of the United States. The First Amendment protects the societal interest of enabling robust public discourse on issues of public concern, and its protections are therefore necessarily very broad. However, this interest must be balanced against the societal interest in the public's confidence in an impartial adjudicatory process, which unwarranted public accusations by an attorney against a judicial officer do nothing but weaken and erode.  
  • Attorneys are expected to exercise reasonable objectivity in their statements about judicial officers. We expect those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process. This, we note, also has the incidental benefit of fostering effective advocacy for their clients. 
  • In determining whether an attorney violated the rule of professional conduct prohibiting knowingly false statements, or statements made with reckless disregard to falsity, concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office, a court must determine whether the attorney lacked any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made The extent to which the attorney discloses accurate facts to support the statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity.
The comments made by Ogden in private e-mails to other parties involved in the case that Judge Coleman, the commission and York believed violated the rules of professional conduct boiled down to the following statements made by Ogden:
I’m not going to apologize for getting Judge Coleman off the case. The man should be   turned in to the disciplinary commission for how he handled this case. If this man had been in Marion County, with a real probate judge, the stuff that went on with this case . . .
No, Mary, what the “huge joke” is how a court allowed an estate worth millions of dollars to be opened as an unsupervised estate with an executor who wasn’t to inherit from the residue of the estate. Randy Carr was exactly correct to question whether the judge had a conflict. He should be brought up on disciplinary charges for how he handled this case.
It’s not exactly surprising that after five years Robert P. Carr’s estate is found to have gone from several hundred thousands of dollars (which was a gross underestimate) to nothing. Crown Plaza is part of the estate.
There’s no “witch hunt.” Just a desire that the estate be handled honestly and fairly, which it hasn’t been.  Unfortunately the time I got on the case, there was hardly anything left. The judge is the one who should get the lion share of the blame. 
If there were no shenanigans going on, then why oppose an outside accounting?

York's order states that the disciplinary standards for Ogden's violation "minimally provide for a public reprimand for Respondent's conduct," absent aggravating and mitigating factors. York found that despite having no previous disciplinary record Ogden had aggravated the circumstances of his case by "his multiple attacks on Judge Coleman and the personal representative, Robert, for which he remains unrepentant; his disrespectful letter to Judge Coleman; his ex parte communication with Judge McCarty, asserting he had a right to do so; and, his behavior during the disciplinary process." The ex parte communication involved a letter Ogden sent to all civil court judges in Marion County, as well as the county prosecutor and the state's attorney general pointing out a recent ruling in a Supreme Court case involving civil forfeitures providing that forfeited sums are to be paid into the common school fund. York acknowledged that Ogden had no civil forfeiture case pending before the courts but should have known that a member of the law firm where he worked had a pending case. Ogden had not copied the other parties on the letter he sent and did not believe the rules required him to do so since the manner in which funds are allocated once a forfeiture action is ordered is of no consequence to them. Nonetheless, York concluded his communication violated the rule against ex parte communications, although he recommended a sanction limited to a public reprimand for the violation.

York found no mitigating factors to support a lesser sanction other than his lack of prior disciplinary actions. York said he "struggled with determining Respondent's motive to act" in considering whether there was an absence of a dishonest or selfish motive." "Concluding that none of his misconduct would benefit Respondent’s client, Randy, or his future clients appearing before Judge Coleman, the only reasonable explanation is that Respondent was acting in what he perceives as his own personal interests," York wrote. "In short, Respondent believes he is a warrior tasked with righting wrongs within the legal system, and asserts without reasonable foundation that the Complaint is an attempt to stifle such activities," York concluded. "While Respondent’s goals may be admirable, there are reasonable alternatives available to him other than to conduct his mission activities in violation of the disciplinary rules," he added. York chastised Ogden for refusing to "recognize his wrongful conduct" or to "make good effort to rectify the consequences of his misconduct." York described Ogden's behavior during the disciplinary action as "obstreperous." York found that "other than his own self-serving statements" there was "no evidence" presented in mitigation based on his character or reputation.

Please click here to view a PDF copy of the order.

UPDATE: The Indiana Lawyer's Dave Stafford has posted a story on York's recommended sanctions against Ogden here.


Adam said...

Thanks for reporting on the unfortunate case. I am Ogden's attorney. Several people have expressed an interest in hearing from me. However, by the time I got the recommendation, most places had closed for the holidays. This is what I will be saying:

Today, Hearing Officer York recommended that Paul Ogden be suspended for at least a year for statements he made critical of a Hendricks County judge. While this was not unexpected, Hearing Officer York's ruling is flawed in many respects.

First, while we maintain that the statements made were reasonable under the circumstances, the recommendation is at odds with a series of U.S. Supreme Court opinions requiring that attorney discipline proceedings show a substantial likelihood of material prejudice to the case. This was not present. Instead, York cited two cases, Garringer and Holland, which merely interpreted the requirements under the rule. They did not address First Amendment challenges.

Second, Hearing Officer York did not address the application of the Indiana free speech clause to attorney disciplinary cases. Instead, he concluded that since there was no case law on such claims, there must be no protection. Yet, the Indiana Supreme Court has repeatedly said that the state constitution's free speech provision is more protective than the U.S. Constitution. In fact, under State precedent, Ogden would be protected unless his statements caused actual damage.

Finally, and almost as problematic, Hearing Officer York recommended an elevated sanction based on "lack of insight." The lack of insight is that Ogden actually tried to defend himself in the proceeding. When he tried to prove that the Disciplinary Commission had a bias, the first thing they did was to try to quash his subpoenas.

I fully expect having to argue this here in Indiana and beyond.

Pete Boggs said...

Wouldn't it be the judge, whose behavior was "obstreperous" or does the DC condone it?

Anonymous said...

...who is Warren said

Why are we not surprised by this?

York described Ogden's behavior during the disciplinary action as "obstreperous."

Obstreperous: noisy and difficult to control. "the boy is cocky and obstreperous"

I was present for the first few hours of this hearing and right from the start hearing officer Robert York's attitude to be blatantly cocky and "obstreperous."

Paul Ogden is a champion. The Robert Yorks of the world represent those who want to suppress the integrity that is lacking in the system.

Anonymous said...

not anonymous, Warren said

Why are we not surprised by this?

York described Ogden's behavior during the disciplinary action as "obstreperous."
Obstreperous: noisy and difficult to control. "the boy is cocky and obstreperous"

I was present for the first few hours of this hearing and right from the start I found hearing officer Robert York's attitude to be blatantly cocky and "obstreperous."

Paul Ogden is a champion. The Robert Yorks of the world represent those who want to suppress the integrity that is lacking in the system.

Anonymous said...

This action is straight out of the German Ministry for State Security (Stasi).

Next they will be collecting our guns and telling us what to think.

Gary R. Welsh said...

Thanks for you insight on the case, Adam. What really bothers me is how much time the commission spent on this case while giving short shrift to far more serious cases where attorneys have engaged in criminal activities or behaved in other ways contrary to the administration of justice. Most attorneys won't say it out loud but believe that the commission went out of its way to make an example of Paul for speaking out openly about problems in the legal profession in Indiana that those in power would rather not have discussed out in the open. The commission has recommended far less severe sanctions for attorneys who have defrauded and worked against the interests of the clients. The message this case sends is that the commission is more concerned about a judge's feelings being hurt by negative statements attorneys make about them than it is about attorneys breaching the duty they owe to their clients. Why was this case so important to the commission? York went to great lengths to defend Coleman's actions in handling the case. If I'm the heirs to this estate who had to sit by and watch this case drag on for years, I would read this opinion as an attempt by the commission to put lipstick on a pig. Nobody should be proud of how this estate matter was handled by the legal system in this state. There's plenty of blame to spread around. The judge alone cannot be blamed but at the end of the day it was not handled in the professional manner the estate's heirs had an expectation that it would be handled. Unfortunately, the only person paying a price is the person complaining about a clearly broken system.

Paul K. Ogden said...

Thanks for all the kind comments and your post and comment, Gary. Adam is right on the money. There is ample U.S. Supreme Court precedent that contradicts what York did in this case. He ignored it as he did the commentary to Rule 8.2
York likes to say I had no evidence that the Commission was out to get me. I'm not sure what he expects...for me to obtain Witte's emails and other information the Commission from their confidential proceedings? Actually when I did try to get emails between the Commission and Barnes & Thornburg (which had a partner I had filed a grievance against who was sitting on the Commission) the Commission immediately move to quash the subpoena. And that's the Commission's way. They'll claim you have no evidence that they are operating improperly but when you try to get that evidence they'll immediately cite confidential rules to prevent you from getting them.
I can't begin to convey to you how poorly that estate was handled, Gary. On Adam's very effective cross, Judge Coleman he admitted making several mistakes in his handling of the estate. But he wasn't the only one. The attorney, who had been practicing law for over 30 years, said he didn't know he had to do an inventory in two months. He testified he thought he could just file a certficate he had done an inventory without actually doing one. An inventory wasn't done until 17 months after the estate was opened. Several properties had been sold by then and he simply listed the proceeds from the sale that had taken place. He simply listed "cash" instead of saying what bank accounts had been out there. He didn't value the estate as of the date of death. York said it was an okay practice, instead of doing an inventory, to just open up his office for anyone who wanted to look at the documents which is what the attorney said he did. The attorney also didn't even bother to itemize his estate bill until I called him on it.
According to my client he was told by the executor, his brother (who unlike the executor's other three siblings had not been not been left a share of the residual estate), that he intended to leave the estate open until there was nothing left. Indeed almost everything happened in the first 1 1/2 years, but yet there was no push to close the estate.
The executor was in the same homebuilding business as his father and they had the same vendors. I was suspicious seeing bills paid to these vendors long after the father's death and after the houses had been sold. He was also making lump sum payments for multiple mortgages when he had mortgages at the same bank. I desperately needed a professional accounting done to figure out where all the money was going and whether the expenditures were legit. Two times he admitted misappropriating estate money to benefit himself even without the accounting. Yet York insists I had no proof the executor was misappropriating money and went out of his way to defend the so called upstanding businessman, i.e. the executor, of possibly misappropriating estate money.

The warning proved accurate. By the time the estate set to close, there was no cash left in it and they had to actually put some money in to make sure the three children got something ($8,000 apiece)at closing. Over a million dollars had flowed into and out of the estate over the years. The man had virtually no debt with the exception of construction mortgages that would have been paid off at closings. There is no reason for there to have been much more cash in that estate. Oh, and the attorney walked away with more than $40,000...the same 30 year plus attorney who didn't know you have to actually do an inventory on an estate.

Anonymous said...

Supreme Court will apply Dixon case.

Sanctions? a public reprimand?

Paul K. Ogden said...

The ruling on the civil forfeiture letter (educating judges about the process involved in dividing the money up) was not expected. I didn't even think York was buying that argument. It wasn't an ex parte communication. The Commission came up with the claim regarding the civil forfeiture defendants in the middle of litigation to bolster their claim, but the problem is the issue I raised in the letter had to do with the division at the civil forfeiture proceeds at the end of the case, when the civil forfeiture defendants are no longer a party. A Court of Appeals opinion says that and says they do not have standing to challenge the division. So why would I need to serve them? I copied the public safety director, the prosecutor and the Attorney General, the very people who arguably have some possible role at trial or on appeal regarding the division of the proceeds.

I wasn't at the law firm when I sent the letter and the attorneys there knew nothing about it. Also, the law firm represented a civil forfeiture defendant and the case cited by the Commission was over when I sent the letter. Nonetheless, how could the letter have possibly helped the firm?

During his testimony, Judge McCarty admitted that he gets educational mailings from law firms and legal interest groups all the time. That's exactly what I was doing. However, unlike them, I went the extra step of copying people on the other side of the issue.

I researched the possible ethical issues before I sent the letter. It was clear it was not a violation of the rules. I even had the example of Judge Payne who apparently when he was head of DCS sent two emails to judges across the state trying to educate them about the DCS's position. Unlike me, Judge Payne's agency actually had cases in those courts. (I don't know if he copied the other side or not.) Judge Payne didn't get disciplined for "ex parte communication" to try to influence a judge. Then again, we know the DC doesn't apply the disciplinary rules equally.

One thing I left out of the other post...the DC specifically argued in its petition that one reason I should be given the one year suspension is because I had criticized the Commission publicly on my blog. Of course, the Commission also had the "lack of insight" argument too which is any case where the attorney refuses to accept the Commission's position on the charges.

Gary R. Welsh said...

I am waiting to see if the commission takes any action in the case of the U.S. Attorney's Office withholding exculpatory evidence from the defendant's attorney that led Judge Lawrence to order a new trial due to prosecutorial misconduct. Here's what the Star reported on that case:

A U.S. District Court judge has ordered a new trial for a western Indiana man convicted on federal gun possession charges who argued in his appeal that the U.S. attorney’s office failed to disclose evidence in his earlier trial.

Donald Bickel, Jasonville, filed his appeal soon after he was convicted last month on one count of possession of a firearm by a felon and one count of possession of ammunition by a felon. He said federal prosecutors withheld key evidence, including statements from a witness claiming he, not Bickel, was the one who owned the weapons.

In his appeal, Bickel characterized the actions as a form of “prosecutorial misconduct.”

The Indiana Law Blog has posted a copy of the court's order granting a new trial here: http://indianalawblog.com/documents/07314157680.pdf

Also, see this old post from 2009 where a public defender here in Indianapolis was arrested for breaking and entering a home and assaulting a 17-year old boy. A news report at the time said it was just a string of bizarre incidents involving the public defender. I checked the roll of attorneys and discovered that no disciplinary action was noted in his past. http://advanceindiana.blogspot.com/2009/07/yikes-hes-public-defender.html

Anonymous said...

Mr. Ogden is a well-known Conservative that has spoken out in his blog and before Tea Party groups about political corruption. This action against him is a reminder to the Tea Party that there is a price to pay when you offend the ruling class by pointing out their self-dealing, deceit, deception, & chicanery.

Paul K. Ogden said...

Anon 8:49, the Dixon case isn't exactly on point. It was an in court statement that was public. The problem with the Dixon case is the troublesome dicta which says attorneys are more protected in their speech during the middle of a court proceeding than outside. As Prof. Tarkington indicated in her seminary, they have it exactly backwards. The Supreme Court has said the only time an attorneys speech can be limited is when their speech is "obstructing the administration of justice" in a pending case. That includes things like a prosecutor making inflammatory comments during a jury trial. Even in the case dealing with that specific issue, the Gentile case, the court said that narrow exception had to be very limited and they said the attorneys comments during the middle of the case didn't go too far.

Anonymous said...

Cases involving the judiciary branch's protection of itself are so fraught with conflicts of interest and are so difficult to be free from the appearance of bias that such matters should be removed to the State Senate for trial.

Anonymous said...

It is time to make sure judges have NO ties to anything. It is time for fair and impartial. If a judge violates the law. That judge is put in prison.

Marycatherine Barton said...

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Marycatherine Barton said...

For more about the predicament facing the vast majority of Hoosiers, which numbers about 75% of us, is living from paycheck to paycheck, listen to:

"Enemies" by Shinedown.

bjb said...

Gary, the hoosier godz of justice would rather that Paul was drunk and disorderly while driving and pulling guns on former clients, since those are activities unworthy of sanctions, as you already noted last year: http://advanceindiana.blogspot.com/2013/08/fort-wayne-public-defender-given-100.html

Paul dares pull back the curtain, so he must be set on fire. You should probably take his burning at the stake as a warning shot, Gary.