Thursday, June 19, 2014
Ind. Decisions - An Important Opinion for Lawyers, Brought to Us By Paul Ogden
The ILB has invited Rochester attorney Ted A. Waggoner, author of the recently retired Lawyers with Troubles blog, for his take on the Supreme Court disciplinary ruling in the Paul Ogden case.
The Disciplinary Commission and its staff threw its best, seeking a fatal blow to the law practice of Indiana lawyer, blogger and irascible fellow, Paul Ogden. The result of the battle was practically inconsequential. An 11 ½ hour hearing, with a reported six staff lawyers involved for the Commission, and the result is a long vacation with a salty price tag, and a self-imposed black mark on the reputation of Ogden, but an important legal decision for the members of the Indiana bar.
Disciplinary opinions are important in many ways, and the Ogden opinion may be the most important DI case this year. The decision continues to restore some balance in the proper regulation of lawyers' speech with the First Amendment, and the public’s need for lawyers, who often are the most knowledgeable possible speakers on many topics, to publicly (or as here privately) address those topics. This topic was admirably handled at the recent Solo and Small Firm Conference in a breakout session led by Steve Terrell and Patrick Olmstead “Crash Course: The Intersection of Legal Ethics and the First Amendment.”
There must be some limits on the free speech of lawyers, just like the proverbial yelling “fire” in the crowded theater, lawyers are properly limited in their public comments. But our comments on the actions or inactions of judges, if factual, need to be protected, and with Ogden, building on the Dixon opinion of last October, they are:
On Count 1, I found the “four categories” used in the analysis distracting, since they are based on four facts that led to findings outlined in the hearing officer’s report of the case, and are not the tests or standards of law we are used to. But the actual test, quoted from Dixon:
Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made? (emphasis in original)is the place to start. Good for the Court, it is a rule lawyers can live with.
Ogden was found guilty where, in making wide ranging accusations against a judge who was no longer presiding in a probate case, with one of the accusations, he missed an important factual matter. Ogden accused Judge Coleman of committing malfeasance for an action that occurred before Coleman took control over the case, and the discipline that is meted out comes from that. Ogden could have and should have known that it is improper to accuse a judge of doing something in a case when he did not yet have the case. That was the basis of the guilty finding, and that seems appropriate.
Also, good for the Court, in finding that there are “broad First Amendment rights” in making criticisms even of judges. While the court refuses to endorse (or reject) Ogden’s many statements that Judge Coleman committed malfeasance in handling the estate (issue 2); that lawyers are not guarantors of the facts that clients provide them (issue 3); and, that strongly worded opinions do not get transformed into statements of fact just because the accuser claims they are factual statements (issue 4), it did allow those criticisms to go unpunished for good reason.
Lawyers can breathe somewhat easier that when over lunch, or in the court conference room, a comment about the eccentricities of a particular judge become the topic of conversation. It should be less likely that the Commission, led by a former judge, will be hypersensitive about the normal or even excited grumblings about the acts or orders of the judges. These gripes have been a part of lawyering since Moses took Jethro’s advice and appointed the first Judges. They will continue, and frankly are important to the justice system.
Count 2 was based on a letter sent to several pf the Marion County judges and others who are responsible to properly handle civil forfeiture cases, advising them of the Supreme Court’s then recent opinion on the proper handling of these cases. The Indy Star had a series of articles at that time as well. Ogden had no active forfeiture cases, but still riled a few feathers. Charged with ex parte communication with a judge, the Court found that with Ogden having no pending cases, and making no misstatement of the law, there was not a violation of Rule 8.4(d).
I initially found the discussion of mitigating and aggravating facts to be frustrating. It would have been helpful for the Court to expand on the comment “Respondent’s conduct has been obstreperous rather than cooperative.” Some already are taking it that a lawyer must accept whatever findings or punishment that the Commission proposes, and not demand a trial, or face a finding of obstreperous behavior. That cannot be the standard, in a case where 4 of 5 findings by the hearing officer are overturned. The Court cannot ask Ogden, Dixon or others who get charged, especially in areas where fundamental rights like free speech are involved, to let the now twice-slapped prosecuting team make the decision on what the law is.
The citation to Matter of Newman, 958 N.E. 2d 792, 800 (Ind. 2011) gives some insight into the discussion. Newman “waged a war of attrition” against his client, according to that opinion in the discussion of aggravators. The Newman opinion goes on to say:
Respondent also accuses the Commission of pursuing him while ignoring more egregious misconduct by other attorneys. He cites examples of purported misconduct by other attorneys involved in the estate litigation, of which he contends the Commission was aware. He also details grievances his wife has filed against attorneys in unrelated matters, which he contends the Commission failed to investigate. Even if his accusations were true, however, the fact that the Commission has not pressed misconduct charges against other attorneys would not relieve Respondent of being answerable to this Court for his.The guidance I take from the opinion on this point is for respondents, and the lawyers who represent them, to focus on the issues in the case at hand. If you are a regular reader of Ogden’s blogs (Ogden on Politics and Disbarring the Critics) you know his focus was as much on the current and previous Executive Secretary and Commission members as it was about preserving his law license. Whether that is a proper tactic for a blogger is for the reader to decide, but it is clear that the Court did not want it to be a part of the disciplinary case.
Yet, the Justices may understand the potential problem. The penalty was a 30- day suspension with automatic reinstatement, unless there is an intervening suspension. There appears to be no requirement for interaction between Ogden and the Commission staff except to check to see if the costs have been timely paid. A new charge filed by the Commission will not interfere with Ogden’s return to the practice. Another good choice by the Court. This will likely be a rocky relationship for years to come.
Posted by Marcia Oddi on June 19, 2014 09:36 AM
Posted to Ind. Sup.Ct. Decisions