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Commission recommends 1-year suspension for lawyer due to email criticism of 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, the Indiana Disciplinary Commission recommended Monday.

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.

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 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 or 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 Monday.

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.”

Ogden “was given an opportunity to simply apologize to Judge Coleman, who would have let the matter go,” the commission brief says. “Instead of apologizing, which he certainly should have done, (Ogden) renewed his lambast and told Judge Coleman he is the one who should apologize.

“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.

“The fact is, Judge Coleman for two years did allow the estate to continue unsupervised and the executor to serve without bond under his watch,” Ogden argues. He asserts there were problems with estate audits that weren’t conducted and other issues.

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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  • You Go, Paul!
    I've had dealings with Judge Coleman, and I know what a small, spiteful man he is. He is definitely one to practice robe rage, yelling at my ex and me for representing ourselves in court and trying to "Act like lawyers," even aften he cautioned me that I would be treated like a lawyer under the law. Fortunately, the Indiana Court of Appeals saw that and corrected action. Coleman got spanked by a higher court because of my appeal, and since then, he's treated me with the respect I deserved in the first place. Don't back down, Paul. Take it as far as you need to.
  • Paul is not dead
    I really like that part where Paul said "The DC should not be in the business of using the disciplinary process to intimidate critics into silence. That is absolutely unacceptable."
  • Correction
    The blog article was in January of 2011 not 2013. The disciplinary grievance started shortly after that.
  • Criticism of the DC
    Throughout my legal career I have argued for improvement to the legal profession. I have opted for changes in the small claims courts in Marion County, I have urged a stop to judicial slating in Marion County where judge candidates have to pay around $25,000 to party bosses to get their endorsement, I have argued for changes with respect to divorce law, and how legal schools educate attorneys-to-be. There is hardly an area that I haven't advocated for reforms. But there was one area, an area that was the source of constant complaints by attorneys, that I had never addressed - the attorney disciplinary system. In January of 2011, I did a study of three years of discipline and found that 397 out of 400 cases involved attorneys from small firms or sole practitioners. I wrote a critical piece about the Disciplinary Commission on my blog in January of 2013 where I reported my findings and called for an investigation. That day I got a call from a politically active attorney who said I could expect that my criticism would make me a target of the DC. He was right. Within a few months, I had my first grievance filed by DC Executive Secretary Witte. Then I had a second one a few months later, again by Witte. I had never been disciplined in my (then) 24 year legal career. The DC attorney later insisted that the disciplinary action had nothing to do with my criticism, that the timing was just a huge coincidence. Well, Monday the DC proved that my suspicion was right all along. In arguing for a one year suspension without right of readmission, the DC focused a great deal on the fact that I had criticized the DC and wrote negative things about the DC on my blog. In order to argue for reform of the legal profession, we attorneys need to have the freedom to speak out about the need for reform, including of the disciplinary process. Now, however, attorneys are terrified of the DC, that if they dare to speak critically, to push for reform as I have done, they will be the next target of the DC and the DC will make sure their legal career is over. I promise my fellow attorneys that, regardless of what happens to me, I will NEVER stop pushing for reform of the disciplinary process, including criticizing the DC when appropriate. I will not be intimidated. When we have attorneys with felony convictions that have never so much as been charged by the Commission at that same time that the Commission is spending enormous resources targeting attorneys for free speech violations (they had at least six staff members at my 11 1/2 hour trial), we have a broken disciplinary system. At the end of the day, the Indiana Supreme Court is the body that can take notice of what is going on and enact meaningful reforms. We need more transparency, we need the disciplinary rules enforced equally, and we need to end the politicization of the disciplinary process. We also need a DC that has a better sense of priorities, i.e. that the number one duty of the DC should be protecting the public from being harmed by dishonest attorneys. But more important than any other reform, these assaults by the DC on free speech need to cease. The DC should not be in the business of using the disciplinary process to intimidate critics into silence. That is absolutely unacceptable.
  • Paul is a muckraker and conservative whisteblower
    First they came for the communists, and I didn't speak out because I wasn't a communist. Then they came for the socialists, and I didn't speak out because I wasn't a socialist. Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist. Then they came for me, and there was no one left to speak for me. Martin Niemöller (1892–1984) about the sloth of German intellectuals following the Nazis' rise to power and the subsequent purging of their chosen targets, group after group
  • Find your voice!
    Attorneys reading this and thinking it could not happen to them might be right, if they are well connected and the political tides do not turn. But it could happen to their less connected kin. And for some of you, it could happen to you, it really could. It happened to me, even though I was once called one of the most powerful attorneys in state government. (It was Kansas and I am a tea party kinda guy). I will post a poem next that is very applicable. Think of Paul Ogden, pray for Paul Ogden, and encourage Paul Ogden. Here is the path to the latter: http://www.ogdenonpolitics.com/
    • wow harsh
      Wow I am amazed at the harsh recommendation from DC. They might as well have asked for his license. Its a pretty stiff professional sanction they want for somebody saying something a judge didn't like. Thank God not all judges are this thin-skinned. This harsh recommendation proves Ogden's point that the RPC are being misused to curb dissent. Shameful.

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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.

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