Thursday, July 25, 2013

A Must Read for Indiana Attorneys: My Disciplinary Case and Its Impact on Attorney Free Speech in Indiana

As some readers know, I have been charged by the Disciplinary Commission. The trial is set for July 30, 2013 in the Indiana Supreme Court Conference Room beginning at 10 am.  As the rules do not appear to require a closed proceeding, I am insisting that it be open to the public.  It is an extremely important case which result will affect every attorney who practices law in Indiana.

I decided to write this because of concern other attorneys have expressed about how their speech, both public and private, could suddenly be targeted by the Disciplinary Commission as a result of my case.  I also write this to clarify the facts behind the charges.

BACKGROUND:  Around 2009, I represented one of three heirs, children of the decedent, in a Hendricks County estate that should have been worth more than a million dollars.   (An inventory wasn't done until 27 months after the estate was opened and the assets and debts of the estate weren't valued as of the time of death. ) The estate had been opened about 2 1/2 years when my client hired me out of concern of how the estate was being handled.  When I got involved, I saw that the estate was not being properly administered.  The executor was a fourth child who had essentially been disinherited from the bulk of the estate.  The estate had only been recently converted to supervised. Worse yet the executor served without bond, i.e. we had no insurance for any executor wrongdoing.   The attorney was being paid by the executor in the middle of the case, without court approval, on bills he didn't even bother to itemize.   The executor was twice caught misappropriating money.  On one he was told that he had to return $8,990 for payments he had made out of the estate for unpaid rent on a house that wasn't even part of the estate.  He agreed to pay it back, while cutting himself a check, again without court approval, for $9,000 in executor fees.
Michael Witte, Executive Secretary
Ind. Supreme Court Disciplinary Commission

The worst thing though was that the executor, a home builder, was in exactly the same business as the decedent.  He even had mortgages on the homes he was building at the same bank as the decedent.   Checks to the bank for mortgage payments often included payments for several mortgages.  It was impossible to tell whether the executor was paying his own bills or the estate's bills.  Given the executor already had been caught twice misappropriating money and the very questionable payments, especially those to the bank for mortgages, I had a reason to ask for an accounting of how the executor had handled the estate.  The judge refused that as well as all my efforts to protect the interests of my client which coincided with the other heirs.  Inexplicably, the judge did not insist that the executor take steps to close the estate.  Meanwhile the money dwindled as the estate continued to remain open.

The judge missed a deadline on one of my motions, and I had him removed through the lazy judge rule.  The Indiana Supreme Court appointed a judge from Hamilton County who very capably and professionally ensured that the estate was closed as soon as possible. But by the time the case had arrived at the desk of the new judge we were about 5 years into the estate and there was little money left.  Outside of some shares of an LLC, my client and the other heirs received $8,000 apiece (and only that after some money was put back into the estate.) The attorney made over $40,000.  Even the disinherited executor by paying himself the $9,000 in executor fees made more than each heir.  And that's not counting the money he may have used to pay his own bills.

THE EMAILS:  As the case was being wrapped up in front of another judge, I emailed the estate's attorney about some matter.  He emailed me back, but included others involved in the case in the cc line, including the executor and his mother (who was doing the books for the executor and I suspected was involved in any misuse of the estate's money). That led to the executor and his mother directing invective toward me which I responded via email saying I felt the Hendricks County judge had grossly mishandled the case and that the strange way in which the judge handled the case, supported my client's insistence that the judge had a conflict because he was a friend of the family and attended parties with the decedent and the executor.  (Another person had independently confirmed that the executor and decedent - obviously before his death - talked about being friends with the judge and attending parties with him.)  Prior to my involvement in the case, my client, pro se, had asked that the judge recuse because of the conflict.  The judge denied being a family friend and denied the request.   In my email, I said that the judge's behavior was so questionable it warranted an investigation by the judicial disciplinary commission.

The mother of the decedent took the emails to the Hendricks County Judge.  He wrote a letter complaining and demanding that I apologize.  When I refused, he submitted a letter and the emails to the disciplinary commission, but did not file a grievance.

GRIEVANCES:  The judge's letter to the DC in September of 2010 appeared to be going nowhere.  Then in January of 2011, I wrote an article on my blog criticizing the Disciplinary Commission for uneven punishment.  I had reviewed the last three years of discipline during Donald Lundberg's tenure as DC chief and found that of the 400 published disciplinary matters during those years, 397 were against small firm and sole practitioners.  I asked the question whether the DC was protecting big firm attorneys.   A few months later, Michael Witte, Executive Secretary of the DC, filed a grievance alleging that I had violated Rule 8.2 in my criticism of the Hendricks County Judge.

A few months after that I got hit by a second grievance filed by Witte.  After reviewing the disciplinary rules and making sure I wouldn't be violating any of them, I had written a letter to Marion County Superior Court judges telling them about the law and a recent Indiana Supreme Court decision that requires that they, at the conclusion of the civil forfeiture action (when the forfeiture defendant is out of the case and the civil forfeiture proceeds are being divided between government agencies), they make a determination of law enforcement costs on the case, with a check for the balance going to the Common School Fund.  In Marion County, law enforcement has been pocketing 100% of the civil forfeiture proceeds for years, undoubtedly because at that point, there is only one party to the case left (government) and the judges are just signing off on whatever is given to them.  I copied the letters to the Marion County Prosecutor, the Attorney General, and the Public Safety Director, all people involved in the split of the civil forfeiture money at trial or on appeal.

One of the Marion County judges who received the letter sent it to the DC.  That judge could not identify any rule I violated. Even in the grievance Witte filed against me, he did not identify any rule I violated.  It was only when formal charges where filed nearly two years later that I found out what rule the DC claimed I violated.

FORMAL CHARGES:   None of my witnesses I provided with respect to the Hendricks County emails was ever contacted by the DC.  I was never contacted by the DC about the grievances or asked for information.  I was never told in advance they were going to file formal charges.  In March of 2013, I get a certified letter indicating that formal charges were filed against me for: 1) A Rule 8.2 violation; 2) improper influence of a judge by ex parte communication.   The timing of the charges is curious because I had started to look for other legal employment, and the charges pretty much stopped that.  It could be yet another "coincidence" in timing which is what the DC always says when you point out strange timing in actions taken by the DC.


According to Rule 8.2(a)

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
 The relevant comments associated with Rule 8.2 state:

[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

Now here is where all licensed attorneys should pay attention because it affects all of them.  Having been involved in this case, it is clear that the DC takes the position that:
1) The DC only needs to prove that the statement was made. At that point, according to the DC, it is the attorney's burden to prove the statement is true.

2)  The DC takes the position it doesn't matter if it is a statement of opinion, the attorney still has the burden of proving the opinion is true.

3)  The DC takes the position that it doesn't matter if the statement is public or private.  If two attorneys are having lunch and one makes a derogatory comment about a judge, the DC takes the position that is a Rule 8.2 violation and and the only way the attorney can escape discipline if the DC files charges is if that attorney can prove the criticism is true.

4) The DC takes the position that Free Speech does not protect an attorney when criticizing a judge, even one elected by the voters.
There probably isn't a licensed attorney in the State of Indiana could survive the DC's interpretation of Rule 8.2. Every attorney criticizes judges, often in very harsh terms.  As my mentor Judge Paul H. Buchanan, Jr. would tell me when I clerked for him at the Indiana Court of Appeals, a judge should expect criticism from attorneys and those who can't handle it should look for a different line of work.   Amen.

The DC's approach to Rule 8.2 is like setting the speed limit on an Interstate to 20 mph. Doing so gives police officers enormous authority to pick and choose which speeders it wants to cite for a traffic offense.  The DC's interpretation of Rule 8.2 gives the DC the authority to charge any attorney in the State.  We all criticize judges privately and often publicly.

FREE SPEECH DEFENSE TO RULE 8.2 CHARGE:  The United States Supreme Court has discussed attorney free speech, most recently in Gentile v. Nevada, 501 U.S 1030 (1991).  In that court, the Supreme Court stated that attorneys have free speech just like any other non-attorney and that the only time an attorneys speech can be proscribed is when an attorney is speaking out publicly about a pending case and it could influence the finder-of-fact.  In that case, the Court specifically said states cannot use state disciplinary rules to discipline attorneys for speech that is protected by the First Amendment.  In other words, if the criticism of the elected Hendricks County Judge would be protected if uttered by a non-attorney, then it is protected if uttered by me. 


It was only when the DC filed formal charges that I learned of the rule they claim that I violated, one prohibiting improper influence of a judge, which then claim was done by ex parte communication.  Nowhere in the Complaint did the DC even mention that I had in fact copied the Marion County Prosecutor, the Attorney General, and the Indianapolis Public Safety Director on the letter.  In subsequent litigation of this matter, the DC came up with a new was ex parte because I didn't copy the civil forfeiture defendants.   As I've pointed out repeatedly to the DC, pursuant to a Court of Appeals opinion, civil forfeiture defendants are not a party to the case when the civil forfeiture proceeds are being divided between government and do not have standing to raise any issue regarding the division.  It's ironic though that the DC is asserting to be standing up for civil forfeiture defendants who weren't cc'd on the letters when in fact what I was doing in trying to get compliance with the law would take much of the profit out of civil forfeiture and help those who are having their property seized.

Ironically the DC attorney told me that the problem was not that the Marion County judges did not know about the law they were supposed to be following regarding distribution of civil forfeiture proceeds, the problem is that the Marion County judges are "just lazy."  Not sure why that wouldn't be a Rule 8.2 violation under the DC's own interpretation of the rules. After all, how could the attorney prove the judges are actually lazy?

I have yet to have a single attorney look at this charge who has concluded it has any merit whatsoever.  As one attorney told me, if there was any question whether the DC's prosecution is personal to me instead of being about rules violations, that is answered by this completely meritless charge..
PUNISHMENT:  Attorney friends are baffled at how this could be anything more than a public reprimand case, at best.  Well believe it.  Not only will I become the only attorney in the country (according to my research) suspended from the practice of law because of criticizing a  judge in an email, the DC is going to insist that my suspension from the practice of law be without automatic readmission.    The DC will claim that is justified because I do not express "remorse" for my actions, i.e I haven't been properly "rehabilitated" by the prosecution.  Even if it is only a month's suspension is followed by the additional line "without automatic readmission" that will likely mean I will never practice law in Indiana again.

I am fine with leaving the practice of law.   I should have started looking for another career 15 years ago.  You get on the wrong tract professionally in law and it's not going to be a profitable or enjoyable career.  As much as it was the best job of my legal career, my clerkship at the Indiana Court of Appeals, in years 3-6 of my being a lawyer put me on a bad career path.  I don't want to be an 80 years old attorney trying to make a living by taking divorce cases or going to small claims court on landlord-tenant cases.   I find it sad that so many elderly attorneys don't have the money or retirement to retire and have to work until the day they die.

While I am fine with walking away from law, I am not fine with how it is being accomplished.  I have no doubt that what the DC is pursuing this out of personal animosity toward me and my criticism of the Commission.  In fact one of the DC members is a Barnes & Thornburg partner.  Not only have I been highly critical of the DC allowing B&T attorneys to escape discipline for rules violations, I filed a grievance against this attorney just weeks before he was appointed to the DC.  The DC does not deny that the B&T partner participated in the discussion and vote on the filing of grievances against me in 2011 and the filing of formal charges in 2013.

When I was sworn in as an attorney in 1987, I do not recall giving up my free speech rights in the ceremony or any document I signed.  I will not give up my free speech rights to be an attorney now.  I have the right to criticize an elected  judge who I feel mishandled a case, even more so in a private communication.  What the DC wants to do in this case will affect all Indiana attorneys, placing a chill on their speech as they practice their craft in constant fear that their communictions will be reported to the DC for prosecution.

For years, I have spoken out and written about the need for legal reform. I have disscussed problems with law schools misleading students about the value of a legal education.  I have tried to draw attention to problems in Marion County small claims court system, problems with the  Marion County Traffic Court, problems with the slating system/judicial selection of Marion County judges, problems with civil forfeiture.   But there was one issue I had not addressed directly that almost all attorneys complain about - the operation of the Disciplinary Commission.  When I finally addressed that issue on my blog in January of 2011, in what I thought was a fair and evenhanded way, I had call from attorney friends who warned that my criticism would make me a target of the DC. They turned out to be exactly right.

While I didn't intend to be out of on the limb, I am now and might as well speak the truth.  The fact is the DC has become heavily politicized and uneven in its enforcement of the disciplinary rules for years.  For example, an attorney who pled guilty to felony wire fraud in January has never been charged.  William Conour, who had grievances against him for years for misappropriating trust funds, was not charged by the Commission until well after he was charged criminally.  It was only through the actions of the FBI, and not the DC, that Conour is no longer a practicing attorney today. Another attorney was found to have committed civil fraud by failing to disclose over a million dollars in legal income and the DC did not file charges.  Four attorneys at Barnes & Thornburg violated the nonwaivable conflict of interest rule by representing the State of Indiana against IBM on the Medicaid privatization effort while their firm also represents ACS, the major contractor on the job and a major witness in the case.  Yet the DC did nothing about the conflict of interest which may well have cost the taxpayers millions of dollars, yet more victims of the DC not doing its job.

Yet when it comes to an attorney in closing argument discussing a woman at a restaurant so drunk as to try to drink out of a ketchup bottle, the DC charges the behavior.  Then you have attorneys who routinely have charges filed against them because of a slight error in management of a trust account that, unlike Conour, has nothing to do with dishonesty.  Repeatedly the DC will ignore attorneys who commit the most serious transgressions displaying extreme dishonesty in order to pursue small firm and sole practictioners on matters that have nothing to do with being dishonest or unethical.

Part of our responsibility as attorneys is to speak out about problems in the legal profession.  No bigger problem exists in our legal profession than how our Disciplinary Commission is operated.   While Mr. Witte's leadership of the Commission has been very poor, it is not all his fault.  Much of the problem with the DC's operations is structural.  Any government agency that is allowed to operate in virtual secrecy, as is the case with most of the DC's operations, will inevitably become politicized.  The DC has become exactly that, inexplicably targeting certain attorneys for, at best, mild transgressions, while attorneys, in particular those at bigger, more politically-powerful law firms, are often given a pass on very serious ethical violations.

While I do not expect to be a practicing attorney much longer, I do hope my case is a catalyst for the Indiana Supreme Court to take a hard look at the operations of the DC and to order an independent review of its operations and its files.  It's long overdue.  While I won't be a practicing attorney anymore, one advantage I will have is much more freedom to speak out openly and candidly about the need for reform of the legal system and profession, especially the operations of the DC, without fear that it will jeopardize my license.

When it comes down to choosing between my license to practice law or my freedom of speech, I choose freedom of speech.


Guest said...

Good luck-put up a fierce battle and be damn noisy about it. The consequence to them if they abuse their power could be one "big mouth" on the airways and in print. Two can play the same game.

Paul K. Ogden said...

Guest, absolutely. Sunshine is the best disinfectant when it comes to such things. said...

Reads very much like how the Chinese government deals with 'dissident' lawyers. In fact, I see no material difference. Power is power and acts the same regardless.

Paul K. Ogden said...

Very true, Steve. I actually am looking forward to leaving the practice and being able to speak open and honestly about how the DC operates without fear of repercussion.

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Unigov said...

I still don't get how "ex parte" can apply outside of an active case.

Unknown said...

I for one give you total support for you are clear advocate of freedom of speech I admire that. if they don't take your liscense I want you to represent me in a case against ocwen ,wells-fargo .franklin financial who predatorize my wife and I. I am a 70year-old viet-nam veteran that has been looking for a lawyer with the right mind-set of fair play please contact me at317-8584779 or again thank you and I salute you sir.a

Dave said...

Would you be interested in appearing before our local Kiwanis to address the issue of free speech for all?

Anonymous said...

I am just now getting up to speed on your dismaying case and will follow it's disposition keenly. I plan to post again on this topic of attorney free speech and your case as lawyer free speech is something I have had a longstanding interest, including back four years ago when I first started blogging on law and culture at "The Irreverent Lawyer" with one of my early posts,
- Mo

Attorney Bernacchi said...

Thank for exposing a system that is uneven, retaliatory, mean spirited, unethical, illegal, and long overdue of reform. The concept of self regulation does not mean this will be tolerated by the bar. The time for a change is now. Federal litigation is likely to only option if they are not going to play fair. I am grateful for your article which was sent to me today. I have experienced what I see as a lynching and a violation of my rights, religious freedom, and unconstitutional. I have been patient and understanding and cooperative, but that seems to get no results. I am the one who knows the facts, or lack thereof. And I know that I did what was ethically required of me; yet, false statements under oath have occurred against me.

Attorney Bernacchi said...

Thank for exposing a system that is uneven, retaliatory, mean spirited, unethical, illegal, and long overdue for reform. The concept of self regulation does not mean this will be tolerated by the bar. The time for a change is now. Federal litigation is likely the only option if they are not going to play fair. I am grateful for your article, which was sent to me today. I have experienced what I see as a lynching, and a violation of my rights, religious freedom, and unconstitutional. I have been patient and understanding and cooperative, but that seems to get no results. I am the one who knows the facts, or lack thereof. And I know that I did only what was ethically required of me; yet, false statements under oath have occurred against me. The investigation was biased and incomplete or incompetent. I am have made two attempts to settle each was rejected, and there is only evidence that I gave them that is misinterpreted. Anyone would be completely dismayed by this. I fortunately have endured far worse and this seems like trivial mistake that someone will soon correct. I just pray, and keep my faith. God Bless you.

Unknown said...

I'm just a normal person, but I found your article enlightening, Doug. Thank you for voicing that judges do get to sit on cases where they know and socialize with one party or the other. Also, it seems more and more that the only freedom of speech the courts want to recognize is for the corrupt. Truth, fairness, honesty ... those are like the voice crying in the wilderness, rarely heard over the rustle of leaves in the trees. You are not alone, so continue to stand for rights - yours and those of others like you.

Unknown said...

I have written the state of Indiana's Disciplinary Commission on 4 attorneys violating various rules and laws in the Indiana Code and the DC does nothing! Mine have to do with Non custodial parenting rights that both the school's attorneys and my children's Medical Provider are denying me with the help of crooked attorneys probably knowing the DC will do nothing to their licenses and I am a nobody so they feel they can do whatever they want to a mere nobody. Shoot they're doing it to attorneys far more experienced in the law than I. What can we do? This has to STOP now! One of my filings is on the Prosecuting Atty and has to do with threatening letters sent to me demanding arrangements for past due child support and I'm on disability awarded by a Federal judge and even the Family law judge couldn't order child support on my case! There are rules being violated and the DC sits idle to it all!