Tuesday, June 17, 2014

Indiana Supreme Court Suspends Ogden For 30 Days For Criticism Of Judge After Finding In Favor Of Him On Four Of Five Issues

The Indiana Supreme Court has handed down its decision in fellow blogger and attorney Paul Ogden's attorney disciplinary action in which it rejected 80% of the findings of hearing officer Robert York, who had recommended that Ogden be suspended from the practice of law for one year for criticizing a Hendricks County superior court judge's handling of a probate estate in a private e-mail communication. The Supreme Court rejected three of the hearing officer's findings of misconduct regarding statements Ogden made about Judge David Coleman, and it dismissed out of hand York's finding that Ogden had violated the rule against ex parte communications with a judge. Nonetheless, the Supreme Court in an opinion written by Chief Justice Brent Dickson issued a 30-day suspension rather than a public reprimand because it found Ogden had been "obstreperous" rather than "cooperative" during the matter, which essentially means he contested the charges brought against him.

The e-mail communication that served as the basis for the disciplinary action was sent by Ogden concerning Judge Coleman's handling of the estate to one of the family members who shared it with other family members and opposing counsel. Someone later anonymously delivered the e-mail communication to Judge Coleman, who became infuriated after reading it. Ogden had expressed his disappointment in Judge Coleman and sharply criticized his handling of a probate estate case that had dragged on for nearly five years during which time the personal representative dissipated the bulk of the estate's assets during his unsupervised administration of the estate. The criticism included allowing the case to be opened as an unsupervised estate. Another judge had initially been assigned the probate case when it was allowed to be opened as an unsupervised estate; Judge Coleman assumed control of the case a few months later. After Ogden had been retained by one of the family member heirs of the estate years after it had been opened, he successfully filed a Trial Rule 53.1 petition to remove Judge Coleman, which is commonly known as the "lazy judge rule" that allows a party to petition for removal of a judge who has failed to timely act on matters in a case pending before his court. This happened nearly four years after the case had been opened.

Judge Coleman filed a complaint against Ogden after he contacted him and requested that he offer a written apology to him for the critical comments he made in the e-mail, which Ogden declined to do because he believed the criticism was supported by the facts and that his First Amendment rights afforded him the right to express an opinion on a judge's professional performance. The hearing officer made four findings that he contended supported a violation of Rule 8.2(a) of the Rules of Professional Conduct, which provides: "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 . . . ."  The hearing officer sought to have Ogden suspended for a period of not less than one year with no automatic right to reinstatement based upon his findings that Ogden violated Rule 8.2(a). Those findings were as follows:
 1) Ogden alleged that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate by allowing it to be opened as an unsupervised estate, by appointing a personal representative with a conflict of interest, and by not requiring the posting of a bond.
(2) Ogden alleged that Judge Coleman committed malfeasance in the subsequent administration of the Estate by, among other things, permitting misconduct by the personal representative, which resulted in dissipation of Estate assets.  
(3) Ogden alleged that Judge Coleman should have recused himself from the case because he was a friend of some members of the family, including the personal representative, and thus had a disqualifying conflict of interest.  
(4) Ogden alleged that Judge Coleman was unqualified as a judge and he engaged in judicial misconduct in presiding over the estate.  
The standard that the Supreme Court applied in determining whether Ogden violated the rule was whether he "lack[ed] any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made." Because Judge Coleman was not the judge assigned the case when it was initially opened as an unsupervised estate, the Court concluded that the hearing officer had met his burden in finding that Ogden violated Rule 8.2(a) in regards to the first finding; however, the Court found that the hearing officer had failed to meet that burden with respect to his findings for numbered findings two through four, which had equally critical observations about Judge Coleman's conduct in handling the case. The Court found that finding two accusing Judge Coleman of "malfeasance" that contributed to the dissipation of the estate involved statements that were protected by Ogden's First Amendment rights. On finding three, Ogden relied on statements of his client and other family members to support his contention that Judge Coleman had a conflict of interest because of an alleged personal friendship with the personal representative, which Judge Coleman denied; therefore, the fact that it turned out to be false was ameliorated by the fact that Ogden had not made the statement with a reckless disregard for the truth the Court concluded. Finally, the Court found that finding four concerning Ogden's belief that Judge Coleman was "unqualified" fell within the nature of statements of opinion as opposed to statements of fact.

The hearing officer had recommended on the second charge of the complaint against Ogden that he be publicly reprimanded for sending a letter to all Marion County judges advising them on a recent Supreme Court opinion which had held that Indiana law required that monies obtained through civil forfeiture actions were to be deposited in the Common School Fund, not distributed to the prosecutor's office and local law enforcement as was often taking place. Ogden had also sent copies of the same letter to the prosecutor's office, the Attorney General and the public safety director. Even though Ogden had no pending civil forfeiture actions before any of the courts, the disciplinary commission sought to discipline Ogden for allegedly violating the rule against ex parte communications after Judge Patrick McCarty forwarded a copy of the letter to the Commission complaining about it. The hearing officer sided with the Commission, but the Supreme Court rejected that finding in its entirety. "It was not an attempt to communicate with the judges about any particular case without the involvement of opposing parties," the Court held. "There is no allegation that [Ogden] misstated the law relating to forfeitures. Under these circumstances, we conclude that the Commission has not presented clear and convincing evidence that [Ogden's] sending the letters to the Marion County judges was prejudicial to the administration of justice."

The fact that Ogden had never been the subject of a disciplinary action in his more than 25 years' practicing law in this state was a strong factor in mitigation according to the Court's opinion. The only aggravating factor was the Court's conclusion that Ogden had been "obstreperous rather than cooperative" during the disciplinary matter, a finding the Court always seems to make in disciplinary cases whenever an attorney contests the disciplinary charges brought against him or her rather than admitting the wrongdoing and not requesting a full-blown hearing on the charges as Ogden insisted upon. Ogden's brief had argued that a 30-day suspension with automatic reinstatement was the maximum sanction supported by the alleged misconduct, which the Court agreed was the appropriate discipline. The Court further ordered Ogden to pay half the costs and expenses of the proceeding, plus a fee of $250 payable to the Court's clerk. Those expenses will likely run well into the thousands of dollars if they include the amount the hearing officer billed the commission for his work. The all-day hearing alone lasted 11 1/2 hours.

This case has been closely watched by attorneys throughout the state, as well as legal ethicists around the country, who have increasingly been critical of decisions in a growing number of states where the high courts have severely sanctioned attorneys for leveling public criticisms against judges. There is great concern that if attorneys who are most knowledgeable of the professional performance of judges are unable to exercise their free speech rights to express their views, judges effectively become immune from public criticism as public officials who should be as accountable to the public as any other public official. Ogden's case was particularly troubling because his criticism was made in a private e-mail and was not a public communication. The public was not even aware of the criticism Ogden had made of Judge Coleman until the disciplinary commission filed charges against him seeking his suspension from the practice of law. Attorneys in Indiana should be very thankful to Ogden for standing his ground and fighting for a fundamental right all attorneys should hold as sacred. He has suffered severe and undue hardship as a result of this entire ordeal. This decision, in my opinion, exonerates him for the most part, notwithstanding the additional hardship of a 30-day suspension he must incur. This was certainly not the outcome desired by the disciplinary commission or the hearing officer.

Ogden posted the following statement on his Facebook account this evening in response to today's decision:
Thanks, for all the supportive comments on my disciplinary case. A special thanks also goes out to my attorney Adam Lenkowsky who did a terrific job representing me. I would recommend his services for all attorneys facing off against the Commission. The case was handed down today. The Disciplinary Commission was trying to get me suspended for at least 1 year w/o automatic readmission (which effectively makes the suspension go on much longer if not permanent) for my comments regarding Judge Coleman in an email. That would have probably ended my legal career, a fact the Commission knew full well and wanted to have happen. The Hearing Officer agreed with the one year and no automatic readmission. The Court though decided on a 30 day suspension with automatic readmission a far, far cry from what the Commission and Hearing Officer wanted. In the decision, the Indiana Supreme Court decided against the Commission (and for me) on about 80% of the matters, including a complete rejection of the 2nd count of the Commission's charge, i.e. the claim I tried to influence Marion County Judges by an "ex parte" communication when I sent a letter trying to educate them about the process they're supposed to be following at the conclusion of civil forfeiture actions. I continually pointed out to the Commission that it was not ex parte and without a scintilla of merit, but the Commission refused to withdraw the charge and quite remarkably the Hearing Officer decided against me on that issue too. Anyway, I need more time to study the decision to comment further but it appears there is some good attorney free speech stuff in the opinion. Regardless, my hope is that this case proves to be a catalyst for the Indiana Supreme Court to take a good hard look at the operations of the Disciplinary Commission (including the need to terminate the services of Executive Secretary Michael Witte) and to insist on changes so that the Commission ceases its continued attacks on attorney free speech and redirects its efforts and resources to going after dishonest attorneys who are harming the public.
UPDATE: Paul has blogged more about the decision here in which he discusses his lengthy history of dealing with the disciplinary commission and the "enormous resources" he says the commission has devoted in an effort to strip him of his law license, which he believes is attributable, in part, to his past public criticism of the commission. Note that neither Judge Coleman nor Judge McCarty were required to file grievances against Ogden; rather, both simply forwarded Ogden's communications to the commission for further investigation, which resulted in the commission filing formal grievances against him. Judges, as a matter of practice, aren't required to file formal grievances against attorneys in order for the commission to act upon them. A judge knows by merely referring a matter to the commission an attorney will be investigated. Interestingly, judges have a duty to report a criminal conviction entered by his or her court against a licensed attorney to the commission; however, judges frequently fail to do this for whatever reason.

UPDATE II: The Disciplinary Commission billed Ogden $10,300 for his share of the expenses for their failed efforts to bar him from the practice of law in Indiana.


Anonymous said...

Your link to the opinion isn't working.

Gary R. Welsh said...

Try it again. It should work now.

Anonymous said...

Many thanks for fixing that link

Anonymous said...

Congratulations to Mr. Ogden...years of waiting must have been agonizing and financially disruptive...dig deeper in matters with other's facing such matters that are public citizens fighting for their rights too...perhaps this will prevail for others in on-going public corruption matters.

Anonymous said...

I'd like to know why Paul Ogden didn't get a Panel of Masters to hear his case like the Democrat Kim Brown did?

If the Supreme Court rejected 80% of Hearing Officer Robert York, then is it fair to say he is unfit to be a hearing officer? I am not an attorney, but it seems to me that a hearing officer should have the trust of The Supremes to do it right, and if they reject 80% of his work product, I think he should be dismissed.

In what other occupation can you perform a job that requires your supervisor to over-rule you 80% of the time and you continue employment?

Adam said...

Anonymous 1:46,

Other than the weatherman, I'm not sure what job you get to keep after being wrong 80% of the time.

Kim Brown got a panel of masters, because the rules are different for judicial discipline than attorney discipline.