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Blogger attorney Ogden grilled in public discipline hearing

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Publicly resigned to the likelihood that action will be taken against his law license, attorney Paul Ogden was grilled for hours Tuesday in his hearing before the Indiana Disciplinary Commission.   

Ogden is accused of violating Rule of Professional Conduct 8.2 for comments made in private emails about a judge. He also is accused of violating rules 2.9 and 8.4(d) for sending a letter to Marion Superior judges regarding asset distribution in civil forfeiture cases. Ogden says U.S. Supreme Court rulings offer attorneys the same protection as the public regarding speech, except in instances where the speech could impact the administration of justice.

On the stand, Ogden said Rule 8.2 “isn’t about stifling criticism of an elected judge. … I have a right to speak the truth about what happened.” But opposing witnesses testified that Ogden stood by critical remarks even after he was informed they were untrue.

Near the close of the almost 12-hour proceeding, hearing officer Robert York posed to Ogden several hypotheticals about attorney speech. York asked the extent to which statements like those he made regarding Hendricks Superior Judge David Coleman could be regulated under the rules.

“The Supreme Court has no authority to enforce the rules to infringe on my free speech rights,” Ogden said.

“Do any of these rules apply to you?” York asked at one point, holding up a copy of the professional conduct code. Seeming exasperated, Ogden said of course they did, but they “can’t be used to infringe my free speech.”

Coleman testified that he obtained copies of emails Ogden sent to opposing counsel in a trust case when someone left them behind in a file in court. Among other things, Ogden wrote that Coleman “should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.” Ogden claimed, among other things, that the estate’s value dwindled from about $1 million to almost nothing due to improper oversight.

Ogden also claimed that Coleman was friends with family members involved in the trust and should have recused himself, an allegation Coleman said he told Ogden was false. Ogden eventually had Coleman, the second judge in the five-year-long trust case, removed through a “lazy judge” motion.

“I had no conflict,” Coleman testified.

Disciplinary Commission attorney Seth Pruden asked Coleman, “As far as you know, are those emails true or false?” Coleman responded, “As far as I know, they’re false.”

“I don’t know of anything I did wrong on this case,” Coleman testified. He said after Ogden “attacked my integrity,” he sent Ogden a letter pointing out several remarks that were untrue. “I sent him a letter and asked him simply to apologize.”

But Ogden refused, repeating the errors that he said the judge had made in the estate case. Coleman then sent the emails to the commission, noting it was the first time in a long career that he had done so against an attorney. “He didn’t retract them,” Coleman said of Ogden’s comments. Had Ogden apologized or retracted the comments, Coleman testified, “I just wouldn’t have sent the letter.”

Ogden’s attorney, Adam Lenkowsky of Roberts & Bishop, repeatedly stressed that the comments were in private emails and said the comments only became public when the commission filed a verified complaint against Ogden.  

Lenkowsky recounted problems with the estate such as disbursements made without court approval. The opposing attorney on the trust case, Steven Harris of Mooresville, denied there were problems with the estate and instead characterized questionable disbursements as honest mistakes that were repaid when discovered. Coleman acknowledged under cross-examination that he had not filed notice of an estate open longer than one year.

Harris represented the estate of Robert P. Carr that was administered by his son, Robert Jr. Ogden represented another heir in the estate, Robert P. Carr’s son, Randy Carr.

The hearing featured testimony from Robert Carr Jr. about his handling of the estate, and from Randy Carr, now serving a 20-year executed sentence at the New Castle Correctional Annex for dealing methamphetamine.

Shackled, in prison scrubs and escorted into the hearing by sheriff’s deputies, Randy Carr repeated accusations that Coleman was a friend of his family who’d joined his father at Christmas parties in the past, and that his father had millions of dollars squirreled away. Robert Carr Jr. testified none of those accusations were true and that his brother has “issues.”

But Randy Carr had informed Harris of conflicts he said Coleman had, and Harris conveyed those concerns to Coleman. The judge declined to recuse himself, saying he could find no conflict. Randy Carr said the judge also denied his request for an outside accounting of the estate.

When Lenkowsky sought to limit questions about Randy Carr’s past drug use, he alarmed Pruden when he volunteered that he also was representing the witness in his post-conviction relief petition. Pruden appealed to York for time to process information he said he was hearing for the first time. York granted him 90 seconds.

Pruden also grilled Ogden on the stand about how he handled his representation of Randy Carr in the estate case. Ogden acknowledged that he never obtained a chronological case summary. He also acknowledged that he was unaware when he criticized Coleman for failing to require a supervised trust or bond that those conditions had been put in place by a prior judge on the case who had recused himself.

“That’s what I believed to be true,” Ogden said of his criticism of Coleman. “That was inaccurate, yes.”

Ogden said he didn’t file a motion seeking Coleman’s disqualification because the judge already had ruled based on his client’s complaint. He also said the judge could have acted to better protect the interests of the estate.

York challenged Ogden on why he didn’t file motions on those matters and asked him to show a case in which a judge had issued such orders sua sponte. “It doesn’t happen,” York said.

Separately, Marion Superior Judge Patrick McCarty testified that he forwarded Ogden’s letter regarding asset distribution in forfeiture cases after he received it unsolicited. He said he feared the letter could be considered ex parte, so he forwarded it to the commission. Lenkowsky asked if McCarty received other unsolicited legal opinions, and he acknowledged he did such as law firm email circulars distributed to judges. Asked if those might also violate rules, he said they might, but he acknowledged he had not reported those.

York asked attorneys to file findings of fact and conclusions of law within 30 days of the completion of the hearing record. Afterward, York will file his report to the Indiana Supreme Court which will determine what disciplinary action, if any, will be rendered.




 

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  • Dang it, Paul
    We've been friends for 15 years, but be quiet. You will only dig the hole deeper.
  • Sua Sponte Orders
    "York challenged Ogden on why he didn’t file motions on those matters and asked him to show a case in which a judge had issued such orders sua sponte." “It doesn’t happen,” York said. York has obviously never practice probate law in Marion County because the court here automatically notices the attorney and personal representative when the one-year deadline for closing an unsupervised estate occurs and orders it scheduled for a show cause hearing unless the estate's attorney beats him to the punch and files a motion for additional time showing good cause for keeping the estate open for a particular period of time beyond the one-year closing deadline. The court continues to track cases open for more than one year and will notice the parties again and again, requiring them to show good cause for the estate to be kept open until it is eventually closed.
  • Answer
    Gary, during the pendency of the estate hundreds of thousands of dollars fgenerated by rental property and the sale of real estate flowed into the estate In the end (about six years after the estate opened) the three residual beneficiaries only received $8,000 apiece (the also did get a portion of an LLC.) The attorney made over $40,000 on the estate.
    • Fees v Distribution
      Paul, I think it would be useful to put this case in perspective if you reported how much Mr. Harris billed the estate versus the total amount that was distributed to the heirs upon the closing of it.
    • Another Clarification
      "York challenged Ogden on why he didn’t file motions on those matters..." Actually I did file several things to bring to the attention of the court problems associated with the estate, argued them at hearings, and was unsuccessful getting the judge to take action. I fought and fought and fought for my client and really for the other heirs who also constantly complained about how the estate was being handled.
    • Clarification
      "Ogden also claimed that Coleman was friends with family members..." Good thorough article but I would point out that I was saying what my client had told me, which was confirmed independently by another witness.
    • judges not above criticism
      So it would seem that perhaps Judges are behind the overuse of 8.2 and this case is front and center exhibit of it. I applaud Paul Ogden. Should other lawyers come under more needless opprobrium due to the misuse of 8.2 that would really backfire on judges who know that they are not above legitimate criticism. Let's have free speech for lawyers. Let's have it for judges too by the way, there's been a bad trend to "de-politicize" the judicial appointment process, to chill the free expression of ideas, to remove the electorate and transfer it all over to socalled merit based appointment. Let's get away from neutering the practice of law. We are not just masses of witless, cublicle dwelling, clock-punching bureaucrats.

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    1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

    2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

    3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

    4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

    5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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