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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. 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.

  4. 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

  5. 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.

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