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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. This guy sounds like the classic molester/manipulator.

    2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

    3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

    4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

    5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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