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1-year suspension recommended for criticizing judge

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Indianapolis attorney and blogger Paul K. Ogden should be suspended from the bar for a year without automatic reinstatement for private communications criticizing a judge, according to the Indiana Disciplinary Commission.

The commission recommended to the Indiana Supreme Court that Ogden receive the sanction for emails that he sent to another attorney accusing Hendricks Superior Judge David Coleman of mishandling an estate case in which Ogden represented an heir. Coleman was removed from the case under a lazy judge motion Ogden filed, and Ogden claimed the judge made numerous mistakes handling the years-long case.
 

Paul Ogden Ogden

Ogden’s brief in reply says his speech was private and protected and there should be no sanctions.

At the heart of the complaint against Ogden is an email he sent to opposing counsel Steve Harris of Mooresville, who represented the estate of Robert P. Carr that was administered by Carr’s son, Robert Carr Jr. Ogden represented another heir in the matter.

Among other things, Ogden said in the email that Coleman “should be turned in to the disciplinary commission for how he handled this case.”

In the commission’s tender of its proposed hearing officer’s findings of facts, it recommends that hearing officer Robert W. York find that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him in any way.”

The commission argues aggravators for Ogden include that he believes he is “superior to the courts and the law” and that his criticism of Coleman was “filled with inaccurate claims and slanderous innuendo.”

The year suspension is appropriate, according to the commission, based on “the conduct involved, the lack of insight, the failure not only to acknowledge any wrongdoing, but the inability to even consider his own misconduct, while at the same time proclaiming misconduct on the part of everyone else associated with this matter, the attacks on the integrity of the Commission and the discipline process and his lack of remorse.”

Ogden has responded to the charge that he violated Rule of Professional Conduct 8.2 by asserting his speech was private and protected by the First Amendment.

“Rule 8.2 certainly does not proscribe attorneys from expressing opinions about judges so Ogden’s general opinion about Judge Coleman’s mishandling of the estate and that the judicial discipline body should look into it, is clearly not sanctionable under a rule that requires a false statement of fact,” Ogden’s attorney Adam Lenkowsky asserted in response to the commission’s findings and conclusions of law.

The Indiana Supreme Court will determine what sanction, if any, Ogden receives. Findings of fact and conclusions of law from the commission and Ogden were filed with the court Sept. 23.

Coleman testified at Ogden’s hearing in July, telling York, “I don’t know of anything I did wrong on this case.”

While Ogden stands by his criticism of Coleman with bullet-point examples of what he claims are mistakes the judge made in handling the Carr estate, the commission claims Ogden “had no evidence and has admitted that he has no evidence of any ethical misconduct by Judge Coleman. Thus, the statement that he should be brought up on discipline charges was a complete fabrication,” the commission brief says.

Coleman also said Ogden could have forgone any disciplinary action had he simply apologized for his statements when Coleman sent him a letter about the email, but Ogden refused. That refusal, the commission asserts, was “particularly egregious, we think.”

“This lack of insight into (Ogden’s) own conduct is the most serious issue presented to the court,” the commission asserts.

In response, Ogden argues that he had no duty to apologize and doing so could have compromised a potential appeal, among other things. He also says the exchanges only became public when the commission released them. He claims the record shows multiple problems with Coleman’s handling of the case.

Rule 8.2, Ogden claims, “is designed to maintain public confidence in the administration of justice, not shield judges from criticism.” His response argues that application of the rule is “limited to scenarios where a lawyer’s comments actually run the risk of interfering with the administration of justice.” He argues Coleman testified that wasn’t the case here.

“Ogden’s comments were private and occurred after the judge who was subject of criticism had been removed from the case,” his response says.

“Rule 8.2(a) does not apply to a private email sent to a person involved in the same court proceeding or a letter in response to a judge demanding an apology,” Ogden’s brief argues. Ogden also claims that the rule requires application of the actual malice standard.

The commission also filed a brief on its interpretation of First Amendment protections and Rule 8.2.

“The Commission does not dispute that lawyers retain First Amendment rights,” it says. “However, the Commission contends that when a lawyer makes a statement concerning the [lack] of integrity or qualifications of a judge that he knows to be false, or makes such statements without regard to whether they are true or false, essentially, without any credible evidence to support it, there is no constitutional protection.”

Meanwhile, Ogden also is accused violating Rule 8.4(d) for making an ex parte communication by sending a letter to Marion Superior judges concerning a Supreme Court decision regarding disposition of assets seized in civil forfeiture cases.

Ogden said he had no matters before judges who received the letter and that he also sent copies not just to the judges, but to “the very parties who are involved in the issue.”•

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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