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Hearing officer recommends 1-year suspension for Ogden

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Indianapolis attorney and blogger Paul Ogden should receive a one-year suspension for email criticisms of a judge, the hearing officer in his disciplinary case has recommended to the Indiana Supreme Court. Ogden shows no sign of relenting in a matter he says is about attorneys’ free speech.

The recommendation issued Dec. 30 in hearing officer Robert W. York’s report aligns with those of the Supreme Court Disciplinary Commission. The Indiana Supreme Court ultimately will decide what sanction, if any, Ogden receives.

“Had (Ogden) exhibited even the slightest remorse for his misconduct, cooperated fully in the prompt resolution of this matter and shown that he had the proper insight and judgment required of Indiana attorneys, the hearing officer would have recommended a less severe sanction,” York wrote.

Ogden_Paul_art-15col.jpg Indianapolis attorney and blogger Paul Ogden steps from the hearing room in July 2013 during a break in his hearing before the Indiana Supreme Court Disciplinary Commission. Ogden’s disciplinary case has gained national attention regarding attorney free speech. (IL file photo)
“In light of his continuing insistence that he did nothing wrong, the hearing officer has grave concerns that similar misconduct could be repeated in the future,” he wrote in the 85-page filing.

Ogden is accused of violating Admission and Discipline Rule 8.2(a) that prohibits attorneys from making statements known to be false or with reckless disregard as to truth or falsity concerning the qualifications and integrity of a judge.

The charge stems from private emails Ogden sent regarding Hendricks Superior Judge David Coleman’s handling of an estate case in which Ogden had Coleman removed under a lazy-judge motion. Among other things, Ogden said Coleman should have been reported to disciplinary authorities for his handling of the case.

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.

York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”

Ogden’s attorney, Adam Lenkowsky, said Thursday that Ogden will petition the Indiana Supreme Court to review York’s recommendation. He said York’s filing was flawed in several respects and that York’s recommendation of an elevated sanction for Ogden’s “lack of insight” was punishment for defending himself before the commission.

“When he tried to prove that the Disciplinary Commission had a bias, the first thing they did was try to quash his subpoenas,” Lenkowsky said in a statement.

Ogden also may pursue a First Amendment appeal to the Supreme Court of the United States. Lenkowsy said the court hasn’t taken such a case for about 20 years. “I think there’s a relatively good chance they will accept an attorney First Amendment case,” he said.

“The (U.S.) Supreme Court has never determined whether New York Times v. Sullivan applies to attorney discipline cases,” he said. Lenkowsky said attorneys shouldn’t be punished for speech protected under that landmark case unless it could affect the outcome of a case.

Ogden’s disciplinary case has gained national attention, and constitutional law experts including Jonathan Turley have expressed alarm about the application of Rule 8.2.

York grilled Ogden during his 12-hour Disciplinary Commission hearing in July. “Do any of these rules apply to you?” York asked Ogden at one point, holding up a copy of the professional conduct code. Seeming exasperated, Ogden said they did, but they “can’t be used to infringe my free speech.”

Ogden on Thursday said he was surprised by the recommended sanction, but that he doesn’t believe he has anything to be sorry about.

“I simply will not agree to give up my free speech rights simply because I’m an attorney,” Ogden said. “I have the same free-speech right to criticize a judge as any citizen.”

York found otherwise.

“Attorneys have the right of free speech but must exercise such right in recognition that they have a privilege, not a right, to represent clients and argue matters in our courts and in doing so they act as officers of the court charged with promoting public trust in our judicial system and in the judiciary,” he wrote.

“While critical speech of public officials, including judges, gives the public necessary information about their government, false or reckless statements by attorneys about judges or the judiciary serves only to destroy such trust. Therefore, unlike private citizens, the rights of an attorney to speak as he or she may choose must be limited by their required responsibilities to our system of jurisprudence.”

York cited a recent disciplinary case to outline the commission’s response to Ogden’s free-speech claim and perhaps illuminate its view of the rule.

“The Commission contends that when a lawyer makes a statement concerning the lack of integrity or qualifications of a judge in reckless disregard of whether the statements are true or false, there is no Constitutional protection and relies upon the ‘objective’ standard specifically adopted by the Indiana Supreme Court on October 8, 2013, in the case of In re Dixon, 994 N.E.2d 1129 (Ind. 2013), and applied by implication to decisions preceding In Re Dixon. The objective standard requires proof that when Respondent made a statement, he lacked any objectively reasonable basis for making the statement, considering its nature and the context in which the statement was made.”

In the Thomas Dixon case, the lawyer was cleared of charges he violated Rule 8.2(a) by arguing that a judge’s bias warranted her recusal in a case involving pro-life students arrested for protesting the announcement of President Barack Obama’s appearance at the University of Notre Dame.

Justices ruled the statements in the Dixon case weren’t violations considering the entire context in which they were made, and based on supporting facts. Justice Robert Rucker dissented and would have sanctioned Dixon.

Ogden also is charged with violating rule 8.4(a), for engaging in conduct prejudicial to the administration of justice for sending unsolicited letters to Marion Superior judges advising them of an Indiana Supreme Court ruling regarding distribution of proceeds in asset-forfeiture cases.

York recommends no sanction for that charge.

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  • Patriot Paul
    So is the one year suspension without automatic restatement (i.e. career death) a plan to silence one of the very few voices courageous enough to tell Statists that they are naked? "Real patriotism is a willingness to challenge the government when it's wrong." Ron Paul ... If that be the case, then the antidote must be a collective, concerted and relentless call for investigations into the misuse of governmental authority. "The original American patriots were those individuals brave enough to resist ... the oppressive power of King George...Patriotism is more closely linked to dissent than it is to conformity and a blind desire for safety and security.” Ron Paul again. There are more than enough legal careers swinging from ropes to justify a look into how decisions to target are being made. Merely look to the Obama admin to see that American governance is not immune from ideological pollutants.
  • The Commission
    Mark, it's actually much worse than that. Judge Coleman wrote a letter to the Commission (but did not file a grievance) complaining about my emails criticizing him in the early Fall of 2010. The Commission did nothing with it until I wrote an article the next year on my blog criticizing the Commission for focusing disciplinary actions on small firm attorneys and sole practitioners (397 out of 400 over a three year period I looked at) and asked for an investigation of the Commission. It was only then that Michael Witte, Executive Secretary of the Commission, went back to the Coleman letter and filed a grievance against me based on the emails. In the sanction brief, the Commission openly admits that one of the reasons the Commission is pushing for a one year suspension is because I have been publicly critical of the Commission.
  • Imagine there is no due process
    Mark, KGB you ask? Imagine the reign of terror that could be initiated under rules that place state agents beyond the reach of the law, as well as their ideologically driven informants? Here today for law applicants, coming soon, if the political correctness movement has its way, for all others. Consider this: Rule 20. Immunity Section 1. Persons Providing Information to the State Board of Law Examiners. Every person or entity shall be immune from civil liability for providing, in good faith, documents, statements of opinion, records, or other information regarding an applicant or potential applicant for admission to the bar of this State to the State Board of Law Examiners; to its officers, Executive Director, staff, employees or agents; or to the Committees on Character and Fitness and their members and agents. Section 2. Immunity for Board, Staff and Character and Fitness Committee. The State Board of Law Examiners and its officers, members, Executive Director, staff, employees and agents, and the Committees on Character and Fitness and their members and agents, are immune from all civil liability for acts performed in the course of their official duties relating to the examination, character and fitness qualification, and licensing of persons seeking to be admitted to the practice of law.
  • KGB
    He sends a private email to his client that is critical of Judge Coleman (a valid criticism btw - he was removed from the case), and it somehow finds its way to the judge's attention. How has he "caused serious injury to the public, Judge Coleman, the judicial system and the legal profession"? He did not make his comments public. The DC did. Make no mistake, this is a punitive action by a vindictive group of people to chill attorneys' right to free speech, pure and simple. What's next? Hiding in the bushes? Tapping everyone's phone? I believe the KGB uses the same tactics to keep people in line.
  • If only
    If only the DC had been so proactive and involved when complaints against Conour from fellow attorneys and clients were received over the years. In the Conour case it was very tangible harm visited upon those who could not help themselves, many under disabilities. An investigation into the Conour mishandling is yet in order. And so is mercy for Paul, who was understandably troubled by a process that drug on far too long and that would have seemed unjust on its face given the sibling situation and rumours swirling about. One year out of the profession seems quite draconian for private correspondence -- he did not post his views on his website prior to the disciplinary action ... albeit I was given five years out via a written opinion bereft of any controlling law or analysis closely approaching that done in this instance.
  • horrible recommendation
    Ridiculous recommendation by hearing officer. The disciplinary process for lawyers is bleeding out its legitimacy on this persecution and a handful of others. Its also bad for the public good, since the DC is a needed body yet which is regrettably wasting its powder on silencing lawyer dissent and burnishing judge reputations instead of policing really bad and criminal lawyer misconduct that truly hurts the public. -- Keep up the good fight Paul!
  • Shooting Mosquitos with shotguns
    The trust of the informed public is harmed far more by this over reaching decision than the extremely minor offense. The public trust is a product of transparency and appropriate conduct. This decision is a failure of both. Apparently the goal is not to protect the judge, the public or the system but to act as punatively as possible hoping it does not blow up in their face. I sincerely hope that calculation is wrong.
  • Over reach
    Once again the disciplinary commission shows they are more concerned about enforcing respect for their own authority than the rights and responsibilities of others. Do we really want a policy that prohibits attorneys from expressing candid opinions in private communications? Do we really want to place judges beyond even private criticism by professional peers?
  • Private Email
    “As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote." . Not sure how I accomplished all that in a private email that was sent only to case participants. Then again, maybe the person who made my private criticism of a judge public may have arguably done that and could be pursued under Rule 8.2. That person would be Michael Witte, Executive Secretary, Indiana Supreme Court Disciplinary Commission.
  • Waste
    This witch-hunt is an incredible waste of time & taxpayer dollars. It's also a classic example of bias. York is clearly the one who lacks integrity for supporting his brother judge instead of supporting the constitution. Paul Ogden is one of the most ethical people I know and it's criminal that he is being railroaded by this kangaroo-court.

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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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