Wednesday, August 14, 2013

What Donald Lundberg Did to Me; Why Reform of the Attorney Disciplinary Process Needs to Include Review of the Disciplinary Commission's "Confidential" Files

 "Every thing secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity."
- Lord Acton
It is an ironclad rule relating to government operations - if government agencies are allowed to operate in secrecy without proper oversight of their activities and accountability, there will inevitably be an abuse of power by those in charge of those agencies.  Below is a recounting of what was done to me by now former Executive Secretary of the Disciplinary Commission Donald Lundberg, what I believe is proof of that postulate.  What happened to me, and has happened to other attorneys around the state, is the reason why our Indiana Supreme Court desperately needs to order an independent review of the disciplinary process, including a review of the Commission's "confidential" files. That investigation needs to include interviews with attorneys whose privacy is guaranteed lest they be fearful of retaliation for speaking out about the Commission (and most attorneys I've talked to are extremely fearful of retaliation) should they recount their own personal experiences with the Commission.  Now on to what happened.

Donald Lundberg
In September of 1990, I filed an extremely lengthy and well documented grievance against a Marion County magistrate.  While the specific details of that grievance are not now important, the gist is that it had to do with the person's fitness to serve as a magistrate and even as an attorney.  Pursuant to the rules, I could file the grievance with either the Judicial Qualifications Commission (which disciplines judges) or the Indiana Supreme Court Disciplinary Commission (which disciplines attorneys).  So I filed with both.  The Judicial Commission took over the matter, but after several months it decided not to file formal charges.

In February 1994, I learned that the magistrate was up for a possible gubernatorial judicial appointment as a Marion County judge.  I called Governor Bayh's chief legal advisor and talked to her about my concerns about the magistrate and that I wished to speak to investigators should the magistrate make the initial cut.  Governor Bayh's advisor indicated she would talk to the disciplinary commissions about my complaint.

About three to four days later, on Saturday, February 19, 1994, I'm sitting at home when the door bell rings.  It was a certified letter from the Disciplinary Commission which contained a one sentence "Request for Investigation" against me signed by Lundberg indicating I had "knowingly provided false information" in the 1990 grievance against the Magistrate.

In an initial answer to the complaint, I told Mr. Lundberg that, if his allegation was true, I had committed perjury and he should submit the matter to the Marion County Prosecutor's Office to have me prosecuted.  Lundberg did exactly that.  A few weeks later I had a meeting with an investigator for the Marion County grand jury.  The investigator told me he was perplexed by the correspondence from Lundberg that just contained the one allegation regarding false information but failed to identify what the false information was or to provide any evidence whatsoever.  Needless to say the Marion County Prosecutor's Office did not agree to do Mr. Lundberg's bidding and prosecute me.

It is my belief that the purpose of the 1994 grievance filed by Lundberg was to intimidate me from talking to investigators about the magistrate.  After all, it is a violation of the Rules of Professional Conduct (see Rule 8.2(a)) to say false things about a person seeking an appointment as a judge and Lundberg had alleged that what I said was false.  Thus, my talking to investigators could have netted yet another allegation of misconduct.  I think another purpose of the 1994 grievance was to discredit what I had to say if I did choose to speak to investigators.
Michael Witte

The magistrate made the cut and the state police called me.  I told the investigator what Lundberg had done but that I was going to talk to them about the magistrate anyway.  Whether it was because of the information I provided, or other reasons, the magistrate never received the appointment.

I never heard any more about Lundberg's 1994 grievance until 1999.  In early 1999, the Indiana State Senate unanimously voted to create several new judgeship positions in Marion County.  In an article on the vote, the magistrate, the subject of my 1990 grievance, was named publicly as a likely candidate for a judge position.

Within a week or or so of that news breaking, I received from Mr. Lundberg another certified letter dated March 1, 1999 saying that the 1994 grievance "has been docketed and will be considered by the Disciplinary Commission." Again, it is my belief that the reason why that letter was sent was to intimidate me from talking to investigators about the magistrate and to discredit me should I choose to do so.  I replied back to Mr. Lundberg (as I had also done in 1994) that it was improper how he was using the disciplinary process and that I would go the press and expose what he was doing if he proceeded with the grievance.

In 1999, as in 1994, there was no sign of any investigation was ever done by the Disciplinary Commission. More importantly, Lundberg never once identified what the claimed "false information" was in my 1990 grievance and never provided me with any evidence in support of his allegation.    As in 1994, nothing happened in 1999.  But the grievance remained pending anyway.

In 2013, I file an original action with the Indiana Supreme Court to order the Disciplinary Commission to dismiss the 1994 grievance.  The response of the Commission was that my original action was moot because the grievance was dismissed in 2008.  I was never notified of that and to this day I have never been provided any evidence that the Commission actually dismissed the grievance in 2008.  Lundberg resigned from the Commission effective January 1, 2010 and became a partner at Barnes and Thornburg, the biggest law firm in the state and a firm I have repeatedly criticized for many reasons, including that its attorneys seemingly being impervious from discipline.

But let's give the Disciplinary Commission the benefit of the doubt.  The undisputed facts are that the Disciplinary Commission maintained a 14 year grievance against me based on the one sentence allegation that I "knowingly provided false information" in a 1990 grievance I filed.  Not once did the Commission ever identify what that false information was or provide me any evidence in support of the Commission's allegation.  Fourteen years.  During that entire time, was I not entitled to know what the "false information" the Commission was claiming I provided and the evidence the Commission had in support of its allegation?  Do not my due process rights at least require that?

It is easy to single out Mr. Lundberg for blame.  Certainly his conduct alone on my case alone is worthy of an investigation and, if found guilty of abuse of his authority, extremely harsh sanctions including the possible lengthy suspension of his law license.  But to focus on this one case is to miss the bigger picture.  There is an almost a complete lack of due process and fairness in the attorney disciplinary process in Indiana.  We need to have safeguards in place to protect the due process rights of attorneys who are targeted by the Commission.  We also need to have more transparency regarding the Disciplinary Commission's operations.  In particular, what needs the most scrutiny is how the Commission conducts itself during the grievance process, which is conducted in secrecy outside even the regular review of the Supreme Court.
Lord Acton

The purpose of the confidentiality rules is to protect the attorney who might face false allegations of misconduct.  Those rules were never intended to protect the Commission from having its operations reviewed.  Yet that is exactly how those rules are being used.  Apparently when asked by a reporter how many pending grievances were more than 10 years old, Executive Secretary Michael Witte responded that he couldn't answer that question because of confidentiality reasons.   How is that covered by the confidentiality rules?  Of course, it is not. 

I have no doubt that the extraordinary effort the Commission is now employing to prosecute me for criticizing a judge in a private email is due in large part to my public criticism of the Commission and how it has operated under the leadership of Lundberg and Witte.  The Commission may well prove successful in having me effectively suspended forever from practicing law in Indiana for criticizing a judge in a private email.  (Any suspension, regardless of length, coupled without the right of automatic readmission means I probably will never practice law again.)  But regardless of the outcome of the current case, I will continue to speak out for reform in the legal profession, including advocating for the Indiana Supreme Court to order an independent investigation of how the Commission has operated during the Lundberg and Witte tenures.  The Court should also insist on reforms so that the disciplinary rules are applied evenhandedly (which they clearly are not now) and that attorneys are treated fairly, including provided due process.

Lord Action, whose most famous quote deals with absolute power corrupting absolutely, was right when he warned about the corrosive impact of secrecy in government.  Abuse of power is the inevitable byproduct of the Commission being allowed to conduct its operations in virtual secrecy.  What Donald Lundberg did to me with the 1994 grievance and for the fourteen years that followed is I believe proof positive of that.


Racoon said...

"was" appears twice in the 1st sentence of the last paragraph.

Remove the unnecessary instance and I'll give this essay an A+++ instead of just an A++.

Paul K. Ogden said...

Thanks, Racoon. I kind of rushed it this morning and didn't get a chance to re-read it enough. It always helps when you have a second set of eyes reviewing it.

Had Enough Indy? said...

Isn't that how the Inquisition conducted business, too - without the rack and stuff - with undisclosed claims?

bjb said...

Paul, you are lancing a boil that is very real and that threatens many with what is, at the end of the day, tyranny. I am pretty sure Thomas Jefferson would applaud you as doing God's Work, even if others plan to crucify you for the same. Good company there.

bjb said...

Hick case, Fort Wayne is interesting. Attorney charged with unlawful carrying of unlicensed handgun (with allegation of brandishing against client) while DUI, second DUI for him. Gets off easy on the charges, at sentencing bench claims he is out of license for 180 days. But .... still in good standing according to ISC website.

Here is the story in the Fort Wayne paper, some great press for our profession here:

THANK GOD Hicks did not do something really dangerous, crazy and unlawful .... like criticize an Indiana judge.