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Ogden receives 30-day suspension for criticizing judge

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Indianapolis attorney and blogger Paul Ogden has been suspended for 30 days by the Indiana Supreme Court based on comments he made regarding a judge who presided over an estate case involving Ogden’s client.

The Indiana Supreme Court Disciplinary Commission brought two counts against Ogden in March 2013. Count I stems from comments he made regarding Hendricks Superior Judge David H. Coleman, who was appointed special judge in an unsupervised estate case. Ogden successfully had Coleman replaced on the case. In 2010, Ogden made several “highly critical” comments about Coleman in correspondences.

The comment that resulted in Ogden being disciplined alleged that the judge 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 bond, the disciplinary order states.

“Respondent’s repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a),” the justices unanimously held in an order handed down Monday.

The commission did not meet its burden of proof regarding the other comments Ogden made regarding Coleman, the justices found, leading the court to find Ogden’s criticisms of Coleman’s rulings fall within his broad First Amendment rights. And although another allegation of a conflict of interest turned out to be false, it was based upon Ogden’s client’s reports to him. The justices found Ogden’s allegation that Coleman was unqualified as a judge and that he engaged in judicial misconduct in presiding over the estate were “more in the nature of opinions as opposed to statements of fact.”

Count II deals with letters Ogden sent to the Marion Superior Court, Civil Division, the Marion County Prosecutor’s Office, the Indiana attorney general and the Marion County public safety director, asking that they ensure the law regarding forfeiture is followed and enforced. At the time the letters were sent, Ogden was not representing any party in pending forfeiture cases.

The justices concluded that the Disciplinary Commission did not present clear and convincing evidence that the letters Ogden sent were prejudicial to the administration of justice.

They also noted that Ogden has been “obstreperous rather than cooperative” during the course of this disciplinary proceeding.

His suspension begins Aug. 5 and he will be automatically reinstated. Ogden is to pay one-half of the costs and expenses of this proceeding, along with a $250 fee.
 

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  • Spot on
    Spot on, Mr. Hofer. Had Paul not resisted we would not have this fine re-statement of Dixon and he would be out of the practice for one year. I think the High Court might have meant to award only half of the copying costs to the State, not half of their attorneys fees. If the latter, then many of the solo practitioners targeted cannot, like Paul, like most targetted, cannot afford to resist the Will of the State.
  • obstreperous?
    The Court said Ogden was “obstreperous rather than cooperative". I think they got their parties mixed up. They ruled Ogden correct on 80% of the issues. The final issue would never have resulted in the loss of a law license like the Disciplinary Commission wanted. Why should you be cooperative when the government is trying to take away your livelihood for speech that is protected by the First Amendment? It's not a fair result when you are assessed $10k in prosecution charges when the prosecution stuck to an unreasonable position the entire litigation and lost most of the lawsuit. Ogden has done a great public service in pointing out that major changes need to be made at the Supreme Court Disciplinary Commission.
    • Poll Idea
      Hey Indiana Attorney .... how about conducting a poll on whether it is just for Ogden to pay $10000 to the disciplinary office for giving him due process of law? Choices could be "very unfair" "possibly unfair" "uncertain" "resistance is futile" and the anciently popular, "worship the state."
    • Sad, sad, pathetic
      Advance Indiana is reporting on a chilling wind that should advise every attonrey in Indiana to not disagree with any government attorneys. to simply be unthinking, uncaring automatons like the powerful and connected want: " 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."
    • Gary on Paul
      Advance Indiana is the place to go for more on this story ... Welch writes "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." And he quotes Paul at this post as well: http://advanceindiana.blogspot.com/2014/06/indiana-supreme-court-suspends-ogden.html
    • here
      Here it the clip, for our younger readers .... https://www.youtube.com/watch?v=oPr7cYLq3dk The Travelor has come ... hmmm, I think friends should hire Ogden to write some policy pieces in August.
      • Justice is done
        This certainly appears to be a just result, and yet another clear sign of a seismic and very welcome sea change in how the Ind Supreme Court approaches these issues. Who woulda thunk it just a few short years ago, but Indiana attorneys really do have first amendment rights. Perhaps the revolution can now be postponed. AND ... this line reminded me of the Marshmallow man scene from Ghost Busters ... "Respondent has suggested that any misconduct the Court finds should warrant no more than a 30-day suspension with automatic reinstatement. See Brief on Sanctions at 19. We impose discipline accordingly"

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        1. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

        2. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

        3. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

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        5. Why is it a crisis that people want to protect their rights themselves? The courts have a huge bias against people appearing on their own behalf and these judges and lawyers will face their maker one day and answer for their actions.

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