IBJ Criticizes Disciplinary Commission for Failing to Prioritize Protecting the Public From Unethical Attorneys

This week the Indianapolis Business Journal focused its staff editorial on the misplaced priorities of the Disciplinary Commission:

Attorney Catherine Nestrick,
Chair, Disciplinary Commission

They’ve been in the headlines for all the wrong reasons. Yet next to the names Paul J. Page and David Wyser in the Indiana Roll of Attorneys appear the words: “Active in good standing.”

Page, a Marion County criminal defense attorney, in January pleaded guilty to a felony wire fraud charge in connection with an Elkhart real estate deal. Wyser, a former Marion County deputy prosecutor, in May pleaded guilty to a felony bribery charge for accepting a campaign donation in return for a reduced sentence for a convicted murderer.

The men face potential prison time for their crimes. But the Indiana Supreme Court Disciplinary Commission has allowed them to continue practicing law in Indiana. Adding insult to injury: The attorneys’ public files with the agency show no active disciplinary cases.

That’s a problem for an agency charged with protecting the public. The commission has allowed Page, Wyser and other attorneys who have pleaded guilty to felonies to continue practicing law, while aggressively pursuing comparatively minor matters.

One example is the commission’s case against outspoken attorney and blogger Paul Ogden, who stands accused of criticizing a judge in a private email. Ogden has not been charged with a criminal offense.
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William Conour, the Indianapolis attorney who pleaded guilty to wire fraud this year after stealing from clients, resigned from the bar in June 2012. Until then, the disciplinary commission also listed him as “active in good standing”—despite complaints from a former partner dating back at least four years.
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Michael Witte, Executive Secretary

The IBJ's criticism of the Disciplinary Commission is actually quite mild given how the Commission has operated.  In the past, the Disciplinary Commission has suspended attorneys at the time of a felony guilty plea.  In fact, the Commission has zealously and successfully sought the suspension of attorneys for alleged criminal offenses that were never charged by state or federal prosecutors.  On the flip side, an Indiana attorney was found to have hidden over $1 million in legal income and yet was never publicly charged by the Commission. 

I've written about how big firm attorneys, including those who work at Barnes and Thornburg which hired former DC Executive Secretary Donald Lundberg as a partner, never seem to charged by the Commission.  My study of Lundberg's last three years at the Commission revealed 397 of the 400 public disciplinary decisions were against small firm attorneys or sole practitioners.

If there is one consistency with how the Commission is being operated under the leadership of Executive Secretary Michael Witte, a former Dearborn County judge, is that, if you dare to challenge a judge directly or indirectly, you could well find yourself a target of the Commission.  I learned this weekend that two northern Indiana attorneys have disciplinary charges pending against them for daring to ask for a recusal of a St. Joseph County judge for a perceived conflict in hearing a criminal case involving abortion protesters.  The Commission's actions in those cases strike at the heart of the right of attorneys to zealously represent their clients.

Ultimately it comes down to a question of priorities.  The priority of the Commission should be protecting the public, not protecting judges and other public officials from criticism.  Besides being criticizing the Commission for misplaced priorities, we attorneys should demand that the Commission respect the First Amendment rights of attorneys. 

Most of the blame falls at the poor leadership and misplaced priorities of Executive Secretaries Donald Lundberg and Michael Witte.  But they are not solely to blame.  There is a nine member board that has to sign off on the charging decisions of the Executive Secretary.  Those board members could put a stop to the targeting of attorneys for criticizing judges or asking for their recusal.  Those board members could insist that the priorities of the Commission be protecting the public from dishonest attorneys.   They have failed to do that.

Further, it appears that the Disciplinary Commission board members do a very poor job of reviewing cases before approving charges that are filed.  Exhibit A is the fact that one of the charges the Commission filed against me is a charge of trying to influence a judge through an ex parte communication.  If the board members would have simply reviewed the letter I sent which notes at the bottom of the document that it was being copied to the very people involved in the issue I was raising, they should have voted down the charge as meritless.  But because board members failed to do their job, I now have to spend time and money defending a charge filed by the Commission that on its face is utterly without merit.  

I should also mention that one of the board members is an attorney that I filed a grievance against years earlier.  Apparently he did not bother to recuse himself and participated in the vote to file charges against me. Of course, it is hard to get that information since the Commission operates in secrecy. 

For the record, below is a list of who is on the Commission. We in the legal profession need to insist that these board members do a better job than they are doing now.  The IBJ is right.  The No. 1 priority of the Commission should be protecting the public from unethical attorneys.  Right now it is not.

Members

Catherine A. Nestrick, Chair
Berry Plastics Corporation
Evansville

William Anthony Walker, Vice Chair
Attorney at Law
Gary

Nancy L. Cross, Secretary
Cross, Pennamped, Woolsey & Glazier, P.C.
Carmel

Andrielle M. Metzel, Treasurer
Benesch, Friedlander, Coplan & Aronoff LLP
Indianapolis

Maureen Grinsfelder
Fort Wayne

Trent A. McCain
McCain & White, PC
Merrillville

R. Anthony Prather
Barnes & Thornburg LLP
Indianapolis

Leanna K. Weissmann
Attorney at Law
Lawrenceburg

Kirk White
Bloomington