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.
“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.