ILNews

1-year suspension recommended for criticizing judge

Back to TopCommentsE-mailPrintBookmark and Share

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.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT