Star Reports On Disciplinary Commission's Complaint Against Ogden For Criticizing Judge In Private E-Mail

Fellow attorney and blogger Paul Ogden faces an attorney disciplinary complaint hearing today based on the charge that he criticized a judge in a private e-mail. Hendricks Superior Court Judge David Coleman filed the complaint against him after he refused to apologize to him after one of the recipients of the e-mail passed the e-mail to Judge Coleman. Ogden, who represented an heir in a probate estate dispute, had vented his frustration about a family member being permitted to remain in control of the estate who other family members contended was laying waste to it while it remained open long beyond the one-year statutory period provided for closing estates.

Judge Coleman, one of several judges assigned to the case at one time or another, was removed from the case after Ogden filed a lazy judge motion against him for failing to timely act on a motion he had before the Court. By the time the estate's assets were distributed, very little remained for the other family heirs. Family members had complained to Ogden that the estate's personal representative had a personal relationship with Judge Coleman, a claim he disputes. Ogden's suggestion that Coleman should have recused himself from the case was what landed him in hot water with Coleman and the Disciplinary Commission. The Star's Tim Evans has a good story today discussing the First Amendment concerns raised by the complaint against Ogden. Here are some excerpts from his story:

“I was standing up for a client who got a raw deal,” Ogden said. “As far as I can tell, this is the first time they have gone after an attorney for something said in a private context. My question is: How far are they going to go? Attorneys criticize judges all the time, and this could have a real chilling effect. This is about more than me.”

The commission does not comment on pending disciplinary cases, said Kathryn Dolan, spokeswoman for the Supreme Court.

While Ogden appears to face an uphill battle in the fight for his legal future, the First Amendment protects his speech, said Margaret Tarkington, an associate professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.

“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”

It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.

In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.

Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.

Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

Lawrence G. Walters, a Florida-based attorney who has a national First Amendment law practice, said there are some legitimate reasons for limiting what attorneys can say, but those are primarily related to comments inside the courtroom and about pending cases.

“There’s a certain level of decorum and formality that is essential to permit the proper administration of justice,” he said. “The public has to have faith in the system, that it’s not a circus.”

Attorneys should have more freedom outside the courtroom, Walters said, “so long as it doesn’t affect the administration of justice.”

Ogden's fear that he is going to be suspended for what he wrote in a private e-mail about a judge are well-founded. The private attorney assigned to hear his case is Robert York, who Ogden says already told him at a pre-trial proceeding that he intended to seek his suspension from the practice of law even before hearing the evidence in his case. That's sort of like appearing before a judge to enter your plea and the judge telling you that you have the right to plead guilty or not guilty, but the judge had already determined that you are guilty and unless you agree to plead guilty without a trial as part of a plea agreement you will face a tougher sentence for your offense because you contested the charges against you.

I contrast Ogden's plight to the treatment of former Attorney General Jeff Modisett. When he didn't like the decision of a federal court judge in Indianapolis to dismiss a tobacco lawsuit he brought against tobacco companies on behalf of the state, he held a press conference on the footsteps of the federal court house where he tore apart the decision, telling reporters words to the effect that the decision wasn't worth the paper on which it was written. Modisett faced no formal disciplinary complaint for his actions despite strong public criticism he faced from the Indianapolis Bar Association for his actions.

In contrast, the Supreme Court publicly reprimanded former Marion Co. Prosecutor Carl Brizzi for comments he made to the press about the pending murder case against defendants accused of killing seven family members. The Supreme Court found that Brizzi violated the Rules of Professional Conduct "by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing an adjudicative proceeding and a substantial likelihood of heightening public condemnation of the criminal defendants."

In another recently concluded case, the Supreme Court publicly reprimanded Tammy Davis, an attorney in Johnson Franklin County who had blamed a judge against whom she was running in the 2012 election for the early release of a defendant who later re-offended during her campaign, an allegation disputed by the sitting judge. She was also barred for five years from seeking judicial office. Compare that to the treatment of attorney Mark Massa's criticism of Terry Curry during the race for Marion Co. Prosecutor in 2010 because he had once defended a child molester. No disciplinary proceedings were initiated against Massa, who was later appointed to the Supreme Court by Gov. Mitch Daniels.

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