Friday, August 30, 2013

Indiana Disciplinary Commission Violates Disciplinary Rule by Not Filing Annual Reports

The Indiana Lawyer reports:
The arm of the Indiana Supreme Court that enforces rules governing the admission and discipline of lawyers has been in violation of one of those rules for several years.

The Disciplinary Commission hasn’t produced an annual report in recent years, Supreme Court spokewoman Kathryn Dolan confirmed. The last annual report posted on the commission’s website as of IL deadline was from fiscal year 2009-2010.

“The reports weren’t put online because they’re not ready yet,” Dolan said. “We’re not trying to make a statement about why, it just wasn’t done. It was an oversight.”

Admission and Discipline Rule 23(23) states, “The commission shall make an annual report of its activities to the Supreme Court and the Indiana State Bar Association. The report shall include a statement of income and expenses for the year.”
Executive Secretary Michael Witte
...
Disciplinary Commission executive director Michael Witte did not respond to messages seeking comment about the absence of annual reports.

Indiana State Bar Association President Dan Vinovich said the association received financial information from the commission last week. “Once it was determined those reports needed to be filed, they have now been filed,” he said.
A lot of thoughts come to mind.  Maybe if the Commission didn't have six or seven staff members devoted to trying to take my license away for criticizing a judge in a private email the Commission might actually have the resources to file the reports on time.

Other thoughts.  Where are the commission members, the body that is supposed to be overseeing the work of Executive Secretary Michael Witte?   Commission Chairwoman Catherine Nestrick offers a less than credible defense of the failure to file, done via email, of course.  There is less chance for those pesky follow-up questions from reporters when you limit your reply to email.
Commission chairwoman Catherine Nestrick said a new case management system implemented to better track cases resulted in the delay in completing annual reports.

“As with many software implementations, we had a number of issues to work through and this caused a delay in the preparation and publication of the 2009-2010, 2010-2011 and 2011-2012 annual reports,” Nestrick said in an email. She noted the 2009-2010 report was only this summer reconciled with the new system and posted online.

“The remaining reports are in the process of being finalized and we expect them to be available very soon,” she said. Dolan said the reports will be posted online when they are completed.
Does Nestrick seriously expect us to believe the reports were delayed because it has taken more than three years to work out the glitches in software?    Why is it then that when the Indiana Lawyer uncovered the failure to file reports, the problem was almost immediately corrected?

The fact is Nestrick and the other board members screwed up.  If they are going to continually abdicate their responsibilities as members of the Commission, if they are not going to ensure that reports are filed and that charges are properly screened, those board members need to resign so that appointees who are more diligent in doing their jobs can be appointed.

DC Chairwoman Catherine Nestrick
Another thought.  Will the Disciplinary Commission cut slack on attorneys who likewise claim software problems or other technical problems for not meeting some requirement under the disciplinary rules?  I'm thinking not.

I find it interesting local county bar leaders interviewed by writer Indiana Lawyer David Stafford insisted on anonymity for comments that offered only mild criticism of the failure of the Commission to file reports.  In the next breath though those local bar leaders claim that most of their members are satisfied with the work of the Commission.

That is nonsense.   I have been an attorney for 26 years and I have heard nonstop criticism about how the Commission has operated under Executive Secretaries Donald Lundberg and Michael Witte. Those attorneys complain that the DC does not enforce the rules evenly, that political considerations enter the Commission's decision to target certain attorneys, that the DC goes after small firm attorneys and sole practitioners almost exclusively, and that the DC operates as a virtual star chamber via its use of secrecy. The board of the DC appears to be little more than a rubber stamp for whatever the Executive Secretary wants to do. My time as an attorney has spanned the Lundberg and Witte eras and I have yet to hear one attorney speak positively of how the DC has operated under them.  On the other hand, I have heard attorneys say positive things about how the DC ran under Shelden Breskow, Lundberg's predecessor.

The fact those bar officials requested anonymity for their criticism of the DC for failing to timely file reports reveals the truth about what is really going on. Those bar officials requested anonymity because they are concerned about retaliation from the Commission for daring to offer criticism. If the DC is not being operated in a political fashion in which critics of the Commission are targeted (like yours truly), then why would these officials have to worry about having their name exposed?  Their own conduct undercuts the claim that they and people in their county bar associations believe that the Commission is being run properly.  They know better.

6 comments:

Kilroy said...

I've recently been wondering, due to your case, if by filing out the Indianapolis Bar Association survey on judicial candidates if any lawyer that marks down a sitting judge as less than fully competent is at risk for a disciplinary complaint under the standard used to file against you.

mike lee said...

I can assure you that any Criticism against a Judge will GUARANTEE your screwed.

Paul K. Ogden said...

Kilroy, according to the Commission, the answer is "yes" you can be. The Commission takes the position that any public or private criticism about a judge, even if only opinion about that judge, that cannot be proven to be 100% true by the person making the comment, is subject to sanctions under Rule 8.2.

The Commission's attorney I spoke to said the Commission doesn't care if it's just an oral statement, an attorney at lunch with a colleague, criticizing a judge. Rule 8.2 applies and the attorney can be disciplined.

Of course, if you read the comments to the rule it's pretty clear that the rule was intended to apply to public comments. Also, there are significant US Supreme Court opinions that say that attorneys have free speech rights like everyone else and that disciplinary rules can only be used to limit that speech when it involves an attorney speaking out publicly about a pending case in such a way that it could influence the finder of fact. These US Supreme Court attorney free speech cases are regularly ignored by state disciplinary officials and unfortunately by a lot of state supreme courts.

Paul K. Ogden said...

Actually Kilroy, Rule 8.2 applies to candidates for judge too.

bjb said...

Please, you Indiana attorneys, just repeat after your handlers, "Oh How I Love Big Brother" and all will be well with you. Or would you rather spend time in Room 101 with O'Brien, like the dissident Ogden?

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