Wednesday, July 31, 2013

Hearing Provides More Evidence that the Indiana Supreme Court Needs to Order an Investigation of the Disciplinary Process

A hearing was held yesterday on the disciplinary complaint filed against me by the Disciplinary Commission, the body that handles disciplinary matters against Indiana attorneys.  The charge was that I had unfairly criticized a judge, who I had removed via a lazy judge motion from an estate case, in an email sent to people who were involved in the case.   The second charge is that I sent an "ex parte" letter to a judge regarding the process that was supposed to be followed at the end of the civil forfeiture case when the money is being divided up between the various government entities. The law requires judges to make a case-by-case determination of law enforcement costs with the balance going to the common school fund.   No money has gone to the common school fund for years from Marion County as judges are just signing off on orders given to them by the prosecutor which allows law enforcement to keep 100% on every case, in violation of the law.  Contrary to the claim the letter was "ex parte," it was copied to the prosecutor, the public safety director and the Attorney General, the very people involved in the issue I was raising at trial and on appeal.  This is all information I've noted before here and elsewhere.

Michael Witte, Executive Secretary
Disciplinary Commission

I would like to talk about everything that happened at the hearing  but the case is pending before the hearing officer.   We will need to let that process play itself out.   I, on the other hand, will speak about what I saw from the Commission yesterday that highlights the need for the Indiana Supreme Court to investigate the operations of the Commission and the disciplinary process.

I have long felt that one of our responsibilities as attorney is to speak out about the need for reform of our legal system.  While I have broached many topics for reform in the legal system, many times on this blog, it was not until January of 2011 when I first decided to touch the third rail and publish an article on the disciplinary process. That story included my research that during the last three years when the Disciplinary Commission was headed by Donald Lundberg, 397 of the 400 published disciplinary cases had been against small firm attorneys and sole practitioners.  It was just a few months after that story that the relatively new Executive Secretary of the Commission Michael Witte began filing grievances against me which ultimately resulted in the charges that were heard yesterday.

I was constantly assured that this, and other instances of unusual timing, were just "coincidences." The Commission's attorney assured me the DC was only objectively and dispassionately enforcing the disciplinary rules and it wasn't personal to me or because I had criticized the Commission.  Events yesterday proved otherwise.

The Disciplinary Commission showed up with about 5-6 attorneys and assistants, most of whom stayed throughout most of the hearing.  Of course, the top attorney at the DC, Seth Pruden, was assigned to prosecute my case.  The DC had gone to considerable effort to research a six year old, complicated estate case to try to claim, contrary to the my assertion, that the estate was handled properly.  The Commission had boxes of evidence on the estate matter. The hearing itself last for 11 1/2 hours with only a few 5-10 minute breaks.   It was evident that, contrary to the Commission's claim, the Commission is willing to spend limitless enormous to prosecute me for the allegation that I improperly and inaccurately criticizing a judge in an email as well as my sending an ex parte letter to a judge that obviously wasn't an ex parte communication.

Yet when the Indiana Lawyer asked Disciplinary Commission Executive Secretary Michael Witte
why the Commission didn't do anything about attorney William Conour who stole $4.5 million from the settlements of 25 clients and had complaints on the issue ranging back a decade or so, Mr. Witte responded that the DC just didn't have the resources to do the investigation necessary to uncover wrongdoing in Conour's trust accounts.  Yet the FBI had no problem uncovering Conour's misuse of the trust account.  Indeed were it only up to the Disciplinary Commission, Conour would still have his license and still be in a position to victimize yet more clients.

The number one job of the Disciplinary Commission, and where most of the Commission's resources should be devoted, is protecting the public from unethical attorneys.   Enormous resources of the DC should not be used to prosecute an attorney for criticizing a judge in an email.  Even if resources of the Commission are devoted to that subject, which is highly questionable given it is clearly free speech, those resources should never be increased ten fold because the attorney is a critic of the Commission's leadership and the disciplinary process.

Again, I would renew my call for the Indiana Supreme Court to form a committee to conduct an independent and thorough investigation of the Commission, all its "confidential" files, and the attorney discipline process.   I would urge the Court to also hold hearings around the state to solicit input from attorneys about their experiences with the Commission and the disciplinary process in general.  Part of this process must be confidentiality given to attorneys who provide information to this investigatory body.  Attorneys are terrified they will be the next target if they dare criticize the Commission and its operations.  From what I experienced yesterday, that fear is not at all unreasonable.

If the only thing pleasant that comes out of this unpleasant experience is that the Indiana Supreme Court hears my call for reform of the disciplinary process and takes action, it will be worth it.


bjb said...

I join the call for reform .... it needs to take place at the IBLE and JLAP as well, as I documented in filings with the federal courts. See

for pleadings and briefs

bjb said...

This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar. 11 It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law—men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the fanatical leaders of the Revolutionary government of France 12 —men like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots 13 —men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party 14 —men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it. But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. 15 This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free. 366 U.S. 82 (81 S.Ct. 978, 6 L.Ed.2d 135) In re George ANASTAPLO, Petitioner. Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

Jeff Ogden said...

Sounds very much like something the Indisana Supreme Court needs to review.

Gary R. Welsh said...

Paul Page and David Wyser have both appeared in federal court rooms this year entering guilty pleas to serious felony charged involving a breach of the public trust. Yet if you check the Roll of Attorneys, neither of them have had a DC action instituted against them. Where's the outrage?

Feekoningin said...

Sorry for the witch hunt. I know this is costing a great deal for you personally, but we all need someone courageous like you to make sure that when we appear in court, we will be treated with impartiality and respect. Many of these judges, indeed, are far too full of themselves, and I can say from personal experience that David Coleman is one of them. I have been able to put him in his place, at least where it involves my concerns. But, clearly, there is a larger battle to be fought against him. I am not an attorney, but if I can help, let me know. I am happy to help you with research,and I am a professional writer, so I can help you prepare motions and briefs. I have won a pro se appeal before the Indiana Court of appeals in an issue from Coleman's court, and in another issue, I was asked by a lawyer whether I was a lawyer because my work was that good.

Had Enough Indy? said...

When do you think a decision will be handed down? And, can a negative decision against you be appealed?

Paul K. Ogden said...

Pat, we have to get the transcript of the 11 1/2 hour hearing back and then we have 30 days to draft proposed findings of fact and conclusions of law. Then the hearing officer rules. I don't expect anything good from him. At that point it's just a recommendation and the IN SCT has to decide.

bjb said...

It should be noted that a big time liberal called for reform long before Ogden did. Perhaps this call should not have been ignored by conservatives?

TMLutas said...

All Indiana lawyers depend on this committee to fairly and independently ferret out corruption in order to preserve the status and reputation of the legal profession. If they cannot do it themselves, eventually outsiders will do it for them, likely with results that will not please the legal profession. For their own sakes, they need to make sure that there is perversion of justice going on.