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Criticism of judge results in discipline case

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Indianapolis attorney and blogger Paul Ogden speaks his mind, sometimes to his disadvantage, he concedes. Now he could lose his law license because of things he wrote.

But the outspoken Ogden isn’t going quietly. He’s instead going after the Indiana Supreme Court Disciplinary Commission, seeking to shift the inquiry from his email criticisms of a judge to what he claims is an abuse of the attorney discipline process.

“I think they have a grudge against me,” Ogden said. “I did touch the third rail … I criticized the Disciplinary Commission.”

Ogden argues in a counterclaim filed last month against the commission that the case against him violates his First Amendment right to free speech and that he’s being targeted. He said the verified complaint filed against him in March arises from a grievance filed after he wrote an item critical of the commission in January 2011 on his “Ogden on Politics” blog. The item asserted that during a particular period of time, just three of about 400 disciplined attorneys worked at Indiana’s 24 largest firms.

“Within a few months, respondent was hit with his first grievance,” Ogden said in his counterclaim. One of two charges in the verified complaint against Ogden is that he violated Rule of Professional Conduct 8.2 by criticizing Hendricks Superior Judge David Coleman in emails Ogden sent opposing counsel in a concluded estate matter.

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.

The commission charges that those and other statements were false or reckless, and that Ogden implied the judge “was either dishonest, or allowed others to be dishonest in the administration of the estate.” Ogden, in response, defended his criticism and noted Coleman had been removed under a Trial Rule 53.1 “lazy judge” motion.

Coleman said Ogden’s claims went far beyond protected speech. Coleman acknowledged he erred in failing to rule on a motion within 30 days, but he said Ogden made unfounded accusations about him in a case where three judges presided at various times.

“One of the implications was that I was friends of the family, which I was not,” Coleman said. “The implication was I somehow conspired with the executor to cheat some of the heirs out of the estate.”

After Coleman received copies of the emails, he asked Ogden for an apology. “In 20 years on the bench, I have never had an attorney attack my integrity in writing in this manner,” Coleman wrote. Ogden refused, citing his First Amendment rights in his reply. “I stand by my statements regarding how you handled this estate,” Ogden wrote.

Coleman said an apology would have spared Ogden a disciplinary complaint. But Ogden said he stands on principle. “I believe strongly the only way things are going to change, particularly in this profession, is if people speak out for reform and advocate for change.”

Disciplinary Commission Executive Director G. Michael Witte said he couldn’t address details of Ogden’s case, but said attorneys’ speech is naturally more highly regulated.

“We’re in a position where our speech is held to a higher standard because of the impact of that speech,” Witte said. “Even outside of lawyer discipline, free speech is not absolute.”

Witte said a hearing officer would be appointed to hear Ogden’s counterclaim. Citing the commission’s confidentiality rules, Witte declined to address whether the commission has handled prior counterclaims in discipline cases.

Indiana University Robert H. McKinney School of Law associate professor Margaret Tarkington has written on the intersection of the First Amendment and potential discipline.

Tarkington describes Model Rule of Professional Conduct 8.2 as “a trap for lawyers” in an article by that title published in the Association of American Law Schools Professional Responsibility Newsletter. She said the rule incorporates the Supreme Court of the United States standard of New York Times v. Sullivan 376 U.S. 254 (1964), that speech regarding a public official is protected unless it is made with actual malice – knowledge that it was false or with reckless disregard of whether it was false. Indiana’s Rule 8.2 also follows the Sullivan line of cases, forbidding attorneys from statements about judicial officials “the lawyer knows to be false or with reckless disregard as to its truth or falsity.”

“The vast majority of states interpret that rule as applied to the judiciary to mean something very different,” Tarkington said. The standard for attorneys commenting on the judiciary she said is closer to, “If you say it, you’d better be able to prove it, which is not what the rule says, and it’s probably unconstitutional.

“It’s almost as far away from a Sullivan standard as you can get,” she said, noting it’s not unusual for attorneys to be disciplined for judicial criticism. Tarkington’s article, “The Truth Be Damned,” published in the 2009 Georgetown Law Journal, reviews numerous instances of such discipline.

Provided details of the complaint against Ogden stemming from the email, Tarkington said it’s important that the context wasn’t in a judicial proceeding where the truth-seeking function of the justice system requires a higher level of accuracy in attorney statements.

“He didn’t even put it on his blog,” Tarkington said. “An attorney should be able to talk about the judiciary in an email.”

Tarkington argues that disciplining attorneys for speech presents dangers. “We have an elected judiciary and lawyers are the ones who know the most about how a judge acts, and (lawyers) best know the law that judges are supposed to follow,” she said. “The problem is you’ve silenced all the people with knowledge.

“You’re basically shielding the judiciary from effective criticism by the people who know,” Tarkington said, “and I think that’s a really big problem.”

The second charge in the complaint against Ogden concerns a letter he wrote to several Marion Superior judges. Ogden said the letter aimed to inform judges about an Indiana Supreme Court decision regarding asset distribution to the Common School Fund in civil forfeiture cases. The commission contends the letters are ex parte communications that violate Rule 2.9 and Rule 8.4(d). Ogden said he had no pending matters before the judges who received the letter, which he said also was copied to the attorney general, county prosecutor and others.

With his disciplinary case pending, Ogden filed an original action with the Indiana Supreme Court this month asking that a grievance filed against him in 1994 be dismissed. The commission responded that the grievance, which claimed Ogden made untrue statements about a then-magistrate in 1990, had been dismissed in 2008. The court dismissed the action, in which Ogden had also requested the court consider a statute of limitations and deadlines in discipline cases.

Ogden said he was never notified about the dismissal. Then-commission director Donald R. Lundberg, now a partner at Barnes & Thornburg LLP, said he couldn’t speak to the particulars of the 1994 complaint, but said, “matters are not dismissed without notice.”

Ogden said a grievance active 14 years merits scrutiny. “As an attorney, I have a right to know what they’re claiming, and they should not be allowed to let things linger for this period of time.”

Witte said he could not say how many pending grievances or complaints are more than a decade old, citing confidentiality.

“Sometimes an investigation remains open for a long period of time where a statute of limitations doesn’t prevent it from being closed,” he said. “Every complaint has its own life and its own reasons for investigation or for holding in abeyance. … We go on a case-by-case basis.”•

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  • hold the wood
    Yet another law prof has come out to denounce the plan to burn Ogden at the stake. http://advanceindiana.blogspot.com/2013/10/another-law-professor-sides-with-ogden.html
  • Freedom rising?
    In a potentially related story, Lois Lerner was FIRED today for abuse of her office in violation of the constitutional rights of those despised by the elite class.
  • Freedom rising?
    In a potentially related story, Lois Lerner was FIRED today for abuse of her office in violation of the constitutional rights of those despised by the elite class.
  • Private E-Mail to a Judge Long After Case Decided
    In Tennessee lawyer sends a private email to a bankruptcy judge criticizing a poison pen Memorandum explaining a final decision in the matter published by the judge almost a year earlier. Lawyer waited until the appeal was unsuccessful then stated his views about the opinion and inquired why the judge thought it proper or necessary to express his ruling in libelous language. Tennessee Board has charged that the private email was impermissibly ex parte and that it violated Tennessee 8.2(a)(1) because it said harsh things about the Memorandum and dared the judge to provide an explanation.
  • Not infallible
    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 any of the clients who fell prey to Conour during that time frame. I’m with J; there needs to be a system to cattle-prod those who fail to act and to publicize misconduct of attorneys and judges to warn the public. When a Pope is ordained, the Church teaches that he becomes infallible. Judges don’t enjoy the same virtue… but some seem to think they do.
  • WHAT???? GIVE ME A BREAK!!!!!
    Disciplinary Commission Executive Director G. Michael Witte said he couldn’t address details of Ogden’s case, but said attorneys’ speech is naturally more highly regulated....GIVE ME A BREAK!!!!! THE TRUTH IS THE TRUTH. IF AN ATTY OR EVEN YOU WITTE, IS A LIAR OR A THEFT OR PLAN LAZY AND DONT DO YOUR JOB IT NEED TO COME OUT. YOU JUST MESSING PPL AROUND AND TAKING THEIR MONEY. BELIEVE ME IT IS WELL KNOWN BY OTHERS IN THE PROFESSION BUT COWARDS ARE SCARE TO COME FORWARD UNLIKE ODGEN. ANNNND, RATHER THAN BEING SUSPENDED.. THERE NEED TO BE JAIL TIME. I DONT CARE WHO YOU THINK YOU ARE...NO ONE SHOULD BE ABOVE THE LAW. ODGEN WE NEED MORE OF YOU...KEEP SPEAKING YOUR MIND.
  • They need a secondary commission
    I believe they need a consumer complaint organization that monitors judges and lawyers both when the judges, lawyers, and commission fail to act. They refuse to eat their own. It would not surprise me to see the Commission refusing to investigate claims of attorney misconduct to protect one of their own. Transparency is needed. There should be a group that publicizes the misconduct of attorneys and judges. If I weren't in the business, I would start it myself.
  • STAND TALL
    Ogden, you are a person of your beliefs and i admire you. Let nothing or no one stop you from being true to yourself. Me and others, im sure, stands with you. Keep STANDING TALL for what you believe.
  • not good
    they are pushing these cases against lawyers too far. thought-crime.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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