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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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