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Blogger attorney’s disciplinary commission hearing to be public

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Indianapolis attorney Paul Ogden’s hearing next week before the Indiana Disciplinary Commission will be open to the public after he waived confidentiality that’s customary in such proceedings.

Ogden is accused in a verified complaint of violating Professional Conduct Rule 8.2 for criticizing Hendricks Superior Judge David Coleman in emails sent to opposing counsel in a concluded estate matter. Ogden also sent a letter to Marion Superior judges regarding asset distribution in forfeiture cases, which the commission charges is a violation of Rules 2.9 and 8.4(d) forbidding ex parte communications.

Ogden, who also writes the Ogden on Politics blog, counters that the case against him is an abuse of the attorney discipline process and violates his First Amendment rights.

Disciplinary Commission Executive Secretary G. Michael Witte confirmed Thursday that the proceeding would be public because Ogden waived confidentiality.

Hearing officer Robert W. York will preside over the final hearing at 10 a.m. Tuesday in the Indiana Supreme Court conference room.



 

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  • Travesty
    I agree with Terry. Perhaps if the judicial system didn’t spend so much time haranguing lawyers who speak out against judicial misconduct, the court/Disciplinary Commission could have pulled William Conour’s license and stopped him years earlier from taking even more millions from his disabled clients. Another attorney spoke out against Conour’s misconduct years ago, yet Conour continued to practice and continued to use his client’s settlements as his own “personal banking system.” Whoever is responsible for that colossal failure to act should be prosecuted by each of the clients who fell prey to Conour during that time frame. There needs to be a system of accountability for those who fail to act and to publicize misconduct of attorneys and judges to warn the public.
  • Only for Marxists???
    This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar. 11 It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law—men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the fanatical leaders of the Revolutionary government of France 12 —men like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots 13 —men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party 14 —men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it. But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. 15 This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free. 366 U.S. 82 (81 S.Ct. 978, 6 L.Ed.2d 135) In re George ANASTAPLO, Petitioner. Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
  • Thank you Paul
    It is attorneys like Paul who might just be able to save the profession from those bent on rendering all lawyers mere tools of legalistic oppression. It is a travesty that the modern bureacratic state, esp in Indiana, seeks such slavishness in its attorneys. Four Justices of the SCOTUS penned it very well more than half a century ago .... see the next post for that salient quote:
  • Disagree
    Publius, I could not disagree with you more on Donald Lundberg. The way he ran the disciplinary commission was a travesty. Witte is no better. His handling of the Conour case is worthy of an investigation. I'm not sure what motivated him to not take action when clearly there was funny business going on. We need a new disciplinary chief, someone who will be evenhanded when it comes to enforcing the rules.
  • Private Speech
    Publius, thanks. I would emphasize though this was private speech. I didn't put the criticism of the judge on my blog. It was a response email that went to attorneys and others involved in the case. This criticism of the judge was not new information to them. Rule 8.2 especially should not be used to go after private speech. And further, the United States Supreme Court has already said that attorneys have the same free speech rights as anyone else and that states cannot use attorney disciplinary rules to infringe upon that right with the exception of the narrow circumstance when an attorney is speaking out publicly about a pending case and that speech could interfere with a fair trial. An example of that was the Brizzi discipline for speaking out on the criminal case. If Rule 8.2 is taken to the extent the DC wants to take it to, every email, every phone conversation, every in person conversation in which an attorney criticizes a judge is open to discipline under Rule 8.2.
  • lawyers are watching this
    I have been talking to a lot of lawyers aboyut this and we are watching. We expect Paul will get a fair hearing. I don't think Mr Witte is an unjust man. He has a fine career behind him and has a difficult job. Likewise Mr Lundberg is a fine lawyer who handled the job well as he could, I expect. I do admire them both. However I feel there is an agenda being imposed from above that seeks to tie the tongues of lawyers. Over time, vested interests in our society have sought to make the adjudicative process more predictable. Controlling lawyers and stoppign them from pointign out embarassing things about judges has become part of the agenda but if it true and germane it is legimate advocacy and shold not be suppressed by the overuse of 8.2. Our rights of due process and trial by jury must be maintained by eternal vigilance, the price of freedom. As lawyers we are the first watchers and we must not blink.
  • Additional Information
    "Ogden also sent a letter to Marion Superior judges regarding asset distribution in forfeiture cases, which the commission charges is a violation of Rules 2.9 and 8.4(d) forbidding ex parte communications." I would just add that I had no cases before any of the judges and the civil forfeiture letter was copied to the prosecutor, the AG, and the public safety director, all the people involved, at trial and/or on appeal, with the division of money between the government entities. The letter dealt with the failure of judges to conduct the case-by-case determination of law enforcement costs with the balance going to the Common School Fund. Instead law enforcement has been allowed to keep 100% of the money for years in direct contravention of the law.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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