Criticism of judge results in discipline case

Indianapolis attorney and blogger Paul Ogden speaks his mind, sometimes to his disadvantage, he concedes. Now he could lose his law license because of things he wrote.

But the outspoken Ogden isn’t going quietly. He’s instead going after the Indiana Supreme Court Disciplinary Commission, seeking to shift the inquiry from his email criticisms of a judge to what he claims is an abuse of the attorney discipline process.

“I think they have a grudge against me,” Ogden said. “I did touch the third rail … I criticized the Disciplinary Commission.”

Ogden argues in a counterclaim filed last month against the commission that the case against him violates his First Amendment right to free speech and that he’s being targeted. He said the verified complaint filed against him in March arises from a grievance filed after he wrote an item critical of the commission in January 2011 on his “Ogden on Politics” blog. The item asserted that during a particular period of time, just three of about 400 disciplined attorneys worked at Indiana’s 24 largest firms.

“Within a few months, respondent was hit with his first grievance,” Ogden said in his counterclaim. One of two charges in the verified complaint against Ogden is that he violated Rule of Professional Conduct 8.2 by criticizing Hendricks Superior Judge David Coleman in emails Ogden sent opposing counsel in a concluded estate matter.

Ogden wrote that Coleman “should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.” Ogden claimed, among other things, that the estate’s value dwindled from about $1 million to almost nothing due to improper oversight.

The commission charges that those and other statements were false or reckless, and that Ogden implied the judge “was either dishonest, or allowed others to be dishonest in the administration of the estate.” Ogden, in response, defended his criticism and noted Coleman had been removed under a Trial Rule 53.1 “lazy judge” motion.

Coleman said Ogden’s claims went far beyond protected speech. Coleman acknowledged he erred in failing to rule on a motion within 30 days, but he said Ogden made unfounded accusations about him in a case where three judges presided at various times.

“One of the implications was that I was friends of the family, which I was not,” Coleman said. “The implication was I somehow conspired with the executor to cheat some of the heirs out of the estate.”

After Coleman received copies of the emails, he asked Ogden for an apology. “In 20 years on the bench, I have never had an attorney attack my integrity in writing in this manner,” Coleman wrote. Ogden refused, citing his First Amendment rights in his reply. “I stand by my statements regarding how you handled this estate,” Ogden wrote.

Coleman said an apology would have spared Ogden a disciplinary complaint. But Ogden said he stands on principle. “I believe strongly the only way things are going to change, particularly in this profession, is if people speak out for reform and advocate for change.”

Disciplinary Commission Executive Director G. Michael Witte said he couldn’t address details of Ogden’s case, but said attorneys’ speech is naturally more highly regulated.

“We’re in a position where our speech is held to a higher standard because of the impact of that speech,” Witte said. “Even outside of lawyer discipline, free speech is not absolute.”

Witte said a hearing officer would be appointed to hear Ogden’s counterclaim. Citing the commission’s confidentiality rules, Witte declined to address whether the commission has handled prior counterclaims in discipline cases.

Indiana University Robert H. McKinney School of Law associate professor Margaret Tarkington has written on the intersection of the First Amendment and potential discipline.

Tarkington describes Model Rule of Professional Conduct 8.2 as “a trap for lawyers” in an article by that title published in the Association of American Law Schools Professional Responsibility Newsletter. She said the rule incorporates the Supreme Court of the United States standard of New York Times v. Sullivan 376 U.S. 254 (1964), that speech regarding a public official is protected unless it is made with actual malice – knowledge that it was false or with reckless disregard of whether it was false. Indiana’s Rule 8.2 also follows the Sullivan line of cases, forbidding attorneys from statements about judicial officials “the lawyer knows to be false or with reckless disregard as to its truth or falsity.”

“The vast majority of states interpret that rule as applied to the judiciary to mean something very different,” Tarkington said. The standard for attorneys commenting on the judiciary she said is closer to, “If you say it, you’d better be able to prove it, which is not what the rule says, and it’s probably unconstitutional.

“It’s almost as far away from a Sullivan standard as you can get,” she said, noting it’s not unusual for attorneys to be disciplined for judicial criticism. Tarkington’s article, “The Truth Be Damned,” published in the 2009 Georgetown Law Journal, reviews numerous instances of such discipline.

Provided details of the complaint against Ogden stemming from the email, Tarkington said it’s important that the context wasn’t in a judicial proceeding where the truth-seeking function of the justice system requires a higher level of accuracy in attorney statements.

“He didn’t even put it on his blog,” Tarkington said. “An attorney should be able to talk about the judiciary in an email.”

Tarkington argues that disciplining attorneys for speech presents dangers. “We have an elected judiciary and lawyers are the ones who know the most about how a judge acts, and (lawyers) best know the law that judges are supposed to follow,” she said. “The problem is you’ve silenced all the people with knowledge.

“You’re basically shielding the judiciary from effective criticism by the people who know,” Tarkington said, “and I think that’s a really big problem.”

The second charge in the complaint against Ogden concerns a letter he wrote to several Marion Superior judges. Ogden said the letter aimed to inform judges about an Indiana Supreme Court decision regarding asset distribution to the Common School Fund in civil forfeiture cases. The commission contends the letters are ex parte communications that violate Rule 2.9 and Rule 8.4(d). Ogden said he had no pending matters before the judges who received the letter, which he said also was copied to the attorney general, county prosecutor and others.

With his disciplinary case pending, Ogden filed an original action with the Indiana Supreme Court this month asking that a grievance filed against him in 1994 be dismissed. The commission responded that the grievance, which claimed Ogden made untrue statements about a then-magistrate in 1990, had been dismissed in 2008. The court dismissed the action, in which Ogden had also requested the court consider a statute of limitations and deadlines in discipline cases.

Ogden said he was never notified about the dismissal. Then-commission director Donald R. Lundberg, now a partner at Barnes & Thornburg LLP, said he couldn’t speak to the particulars of the 1994 complaint, but said, “matters are not dismissed without notice.”

Ogden said a grievance active 14 years merits scrutiny. “As an attorney, I have a right to know what they’re claiming, and they should not be allowed to let things linger for this period of time.”

Witte said he could not say how many pending grievances or complaints are more than a decade old, citing confidentiality.

“Sometimes an investigation remains open for a long period of time where a statute of limitations doesn’t prevent it from being closed,” he said. “Every complaint has its own life and its own reasons for investigation or for holding in abeyance. … We go on a case-by-case basis.”•