Attorney Free Speech and My Hope for Reform of the Disciplinary Process

Tomorrow I will have my attorney disciplinary beginning at 10 am in the Indiana Supreme Court conference room.  It is open to the public.

I have spoken out publicly about this case because of the extraordinary impact it could have on attorney free speech in Indiana.  In the case the Disciplinary Commission is seeking, for the first time, to use Rule 8.2 to target an attorney not for public criticism of a judge, but private criticism.   Mine was a response email sent to people involved in the case in which I declared quite bluntly that an elected Hendricks County judge improperly handled an estate case and the matter should be investigated by the judicial disciplinary commission.  The Commission complains my criticism was unfair and was at some points inaccurate.

As noted in the notes accompanying Rule 8.2 that the purpose of the rule is "false statements by a lawyer can unfairly undermine public confidence in the administration of justice."   It is difficult to conceive how a private email, going to people involved in the case about the judge's handling of a case in which he was no longer involved (I eventually had him removed employing the "lazy judge" notice rule), "undermines public confidence" in the "administration of justice."  As the United States Supreme Court has stated attorneys have free speech like every other member of the public and disciplinary rules cannot be used to proscribe that speech unless they are making comments about a pending case that potentially undermine the administration of justice.  An example would be the Indiana Supreme Court disciplining the former Marion County Prosecutor Carl Brizzi's for public statements he made about the pending Mendenhall and Turner/Stewart murder criminal prosecutions.

No one should forget that these county judges are elected by the public.  Who best in the community to attest to the job an elected judge is doing than members of the bar?  Yet we attorneys are told that if we dare publicly criticize those elected judges, our criticism, even if it only the expression of an opinion, we better be prepared to prove that criticism to be true or face sanctions under Rule 8.2.  (The Commission's position on Rule 8.2 is that it needs only prove the statements or opinions were made then it becomes the attorney's responsibility to prove the statements or opinions are true.) The chilling effect on political free speech is enormous.

My case goes even beyond that.  I am not aware of any case in the country where a state disciplinary body attempted to punish an attorney for criticizing a judge in an email.  Almost every Rule 8.2 case across the country involves public statements about judges in the media, on blogs or in court proceedings.

The Disciplinary Commission takes the position that Rule 8.2 does not even require that the speech be public, nor does it even have to be in writing.  An attorney out at lunch who criticizes a judge, according to the Commission, can be subject to Rule 8.2 charge and will be guilty if he cannot prove that the criticism of the judge is true.  If an attorney tells his wife over dinner that he thinks a judge is biased against his client, that attorney had better be able to prove the judge is actually biased or he can be disciplined.

Under the Disciplinary Commission's interpretation of Rule 8.2 I believe virtually any attorney in the state can be charged with a disciplinary violation. We all criticize judges.  Many attorneys I know regularly criticize US Supreme Court justices in the harshest tones imaginable  As my mentor, the late Judge Paul H. Buchanan, Jr. told me when I clerked for him at the Indiana Court of Appeals, if a judge cannot accept criticism, even criticism the judge feels is unfair or inaccurate, the judge needs to get in another line of business.  I agree, especially when it comes to county judges who sit for election every six years.

The other charge against me also touches on speech.  At the conclusion of civil forfeiture proceedings, when the defendants are out of the case and the government is dividing up the proceeds, the judge is supposed to make a determination of law enforcement costs on a case-by-case basis with the balance above costs going to the Common School Fund.   Yet for years no Marion County judge has ordered money to be paid to the Common School Fund.

Judges appear to simply be signing off on whatever order they are given by the prosecutor at the end of the case.  I believed that the judges simply do not know the obscure statute and fairly recent Supreme Court case reiterating the duty of a judge to determine law enforcement costs in a civil forfeiture case on a case-by-case basis with the remainder going to the Common School Fund. (The DC attorney opined in my conversation with him that the Marion County judges know the law, but that they are "just lazy,")  I reviewed the disciplinary rules to make sure I wasn't violating any of them, and sent a letter to the judges outlining the law regarding the division of civil forfeiture proceeds.  (I also wrote a blog article on the subject of judges not following the rules on division of civil forfeiture proceeds.)  I had no forfeiture cases before any of the judges and to make certain I wasn't accused of some sort of improper ex parte communication, I copied the letter to the prosecutor, the Attorney General and the Public Safety Director, the very people involved, at trial or on appeal, for the very issue I was addressing in the correspondence.

For that I was charged with improperly trying to influence a judge by ex parte communication.  The Commission's position is that the only way judges can learn about the law is through court filings.  (Though the Commission's attorney admits there is a service which tries to keep judges updated about legal developments.)  That simply isn't the case.  If that were true, an attorney sitting down to talk to a judge over lunch and discussing the law would be violating the rules.  An attorney making a legal point at a CLE seminar where a judge is present could be violating the rules.  An attorney sending a judge an interesting law review article would be violating the rules.  The charge simply has no merit whatsoever.

Besides the free speech implications of this case, there are even larger issues raised by my case which I hope will be considered by attorneys debating the future of our profession but especially by the Indiana Supreme Court.  Over the course of my nearly 26 years of practicing law, and I fully expect that the 26th will be my last, the number one complaint by attorneys about the profession is how the Disciplinary Commission has operated under Executive Secretaries Donald Lundberg and now Michael Witte.  The complaint is that the rules are not enforced equally, that certain attorneys become a target while others who commit much more serious violations walk away without ever being charged.  Attorneys though are terrified of criticizing the Disciplinary Commission publicly and arguing for reform of the disciplinary process because of fear that they will become the next target of the Commission.

I can't say from my experience that such fear is unwarranted. In January 2011, I wrote a column criticizing how the Disciplinary Commission appeared to have been targeting small firm attorneys and sole practitioners over large firm attorneys when it came to discipline.  In the article, I talked about the result of my study finding that of the 400 published disciplinary decisions during the last three years of Lundberg's tenure, 397 involved small firm attorneys or sole practitioners.  The two grievances, both filed by Witte, were filed against me just months later.  Since that time, the Commission has employed considerable resources to prosecuting my disciplinary case.  Meanwhile, despite the Commission knowing for years the allegations that Attorney William Conour was dipping into trust funds for personal use, the Commission failed to take any action against Conour until the FBI finally stepped, did an investigation, and filed criminal charges.   As I've outlined previously this is just one of several instances where an attorney was involved in very serious ethical violations and the Commission failed to take action.

As noted, I expect this year of the practice of law to be my last.  I will not give up my free speech rights to be an attorney and I certainly refuse to stop criticizing the Disciplinary Commission operations which are in desperate need of review by the Indiana Supreme Court.  Hopefully something good will come out of my case - that the urgent need for reform of the disciplinary process will be brought to the attention of the Indiana Supreme Court.