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Wednesday, June 18, 2014

Ind. Decisions - Supreme Court disciplines Paul Ogden

Updating earlier posts on the disciplinary proceedings against Indianapolis attorney-blogger Paul Ogden, today the Supreme Court posted its order, filed June 16th.

In re Paul K. Ogden is a 4-page, 5-0 order finding misconduct and imposing discipline. With respect to Court 1, that "In 2010, Respondent engaged in correspondence with the children's mother and later with Judge Coleman in which he made highly critical statements about Judge Coleman," the Court writes:

Analysis: Count 1. To support a conclusion that Respondent violated Rule 8.2(a), there must be clear and convincing evidence that the statement at issue was false and that Respondent made the statement knowing it was false or with reckless disregard regarding its truth or falsity. In a recent case involving an attorney's freedom of speech challenge to charges under Rule 8.2(a), the Court adopted the following test for evaluating such statements: "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?" Matter of Dixon, 994 N.E.2d 1129, 1137 (Ind. 2013) (emphasis added).

The Court concludes that the Commission has met its burden of proof regarding Respondent's category (1) statements. Respondent's repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for his category (1) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a).

The Court concludes, however, that the Commission has not met its burden of proof regarding Respondent's statements in categories (2) through (4). While not suggesting that Judge Coleman committed malfeasance while presiding over the Estate, the Court concludes Respondent's category (2) criticisms of Judge Coleman's rulings fall within his broad First Amendment rights. And although Respondent's category (3) allegations of a conflict of interest turned out to be false, Respondent based them on Client's reports to him, which he believed, and thus were not made in reckless disregard of their truth or falsity. Finally, we conclude that Respondent's category (4) statements were more in the nature of opinions as opposed to statements of fact.

With respect to Court 2, the Court writes:
Respondent's letter to Marion County judges requested them to follow forfeiture law as had been recently outlined by this Court. It was not an attempt to communicate with the judges about any particular case without the involvement of opposing parties. There is no allegation that Respondent misstated the law relating to forfeitures. Under these circumstances, we conclude that the Commission has not presented clear and convincing evidence that Respondent's sending the letters to the Marion County judges was prejudicial to the administration of justice.
The Court continues:
Mitigating and aggravating facts. The appropriate discipline in any case depends not just on the misconduct found, but also on mitigating and aggravating facts. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011). In mitigation, we note that Respondent has no prior discipline. In aggravation, we find that during the course of this disciplinary proceeding, Respondent's conduct has been obstreperous rather than cooperative.

Discipline: Although we have found misconduct only with respect to Respondent's category (1) statements in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case. Respondent has suggested that any misconduct the Court finds should warrant no more than a 30-day suspension with automatic reinstatement. See Brief on Sanctions at 19. We impose discipline accordingly.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning August 5, 2014. * * * At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

ILB: In contrast, the hearing officer had recommended suspension for one year, without automatic reinsstatement.

Posted by Marcia Oddi on June 18, 2014 01:55 PM
Posted to Ind. Sup.Ct. Decisions