Thursday, September 26, 2013

Do Attorneys Have a Free Speech Right to Criticize the Disciplinary Commission?; Commission Replies "No" As Assaults on Attorney Free Speech Continue

I posted a lengthy comment on the Indiana Lawyer story on my case. Below is an edited version of that comment:

Executive Secretary
Michael Witte
Throughout my legal career I have argued for improvement to the legal profession. I have advocated for changes in the small claims courts in Marion County.   I have urged a stop to judicial slating in Marion County where judge candidates have to pay around $25,000 to party bosses to get their endorsement.   I have also argued for changes with respect to divorce law, and how legal schools educate attorneys-to-be.

There is hardly an area in which I had not advocated for reforms. But there was one area, an area that was the source of constant complaints by attorneys, that I had never addressed - the attorney disciplinary system. In January of 2011, I did a study of three years of discipline and found that 397 out of 400 cases involved attorneys from small firms or sole practitioners. I wrote a critical piece about the Disciplinary Commission on my blog Ogden on Politics in which I reported my findings and called for an investigation.

Catherine Nestrict, DC Board Chair
That day I received a call from a politically active attorney who said I could expect that my criticism would make me a target of the DC. He was right. Within a few months, I had my first grievance filed by DC Executive Secretary Witte. Then I had a second one a few months later, again by Witte. I had never been disciplined in my (then) 24 year legal career. The DC attorney prosecuting my case insisted that the disciplinary action had nothing to do with my criticism of the DC, that the timing was just a huge coincidence. Well, Monday the DC proved that my suspicion was right all along. In arguing for a one year suspension without right of readmission, the DC focused a great deal on the fact that I had written critical things about the DC, published on my blog.

Anthony Prather, DC Board
Member and Former Chair

In order to argue for reform of the legal profession, we attorneys need to have the freedom to speak out, including about the disciplinary process. Attorneys though are terrified of the DC, fearful that if they dare to speak critically, to push for reform as I have done, the DC will make them their next target and may even try to end their legal career. I promise my fellow attorneys that, regardless of what happens to me, I will NEVER stop pushing for reform of the disciplinary process, including criticizing the DC when appropriate.  I will not be intimidated. When we have attorneys with felony convictions who have never so much as been charged by the Commission at that same time that the Commission is spending enormous resources targeting attorneys for free speech violations (the DC had at least six staff members at my 11 1/2 hour trial for criticizing a judge in an email), we have a broken disciplinary system.

At the end of the day, the Indiana Supreme Court is the body that can take notice of what is going on and enact meaningful reforms. We need more transparency, we need the disciplinary rules enforced equally, and we need to end the politicization of the disciplinary process. We also need a DC that has a better sense of priorities, i.e. the number one duty of the DC should be protecting the public from being harmed by dishonest attorneys.  We need statutes of limitations enacted on grievances and we need rules requiring that members of the DC recuse themselves from sitting on cases deciding the discipline of an attorney who had previously accused the DC member of an ethical violation.   But more important than any other reform, these assaults by the Disciplinary Commission on attorney free speech need to cease immediately. The DC should not be in the business of using the disciplinary process to protect judges and the DC from criticism.  That is not what the First Amendment is about and that is certainly not what the disciplinary process should be about.


Elliott Shultz said...

I couldn't tell from the article who brought your email to the commission. Could you explain how the issue was brought to them?

Also, what happens after the commission rules? Is there an appeals process? Who would hear an appeal?

Paul K. Ogden said...

A disgruntled family member who was unhappy with my saying the estate was mishandled (she did the bookkeeping) took the emails in though there is some discrepancy on the date.

The Commission acts as a prosecutorial body. They don't rule. The Hearing Officer rules and his ruling is a recommendation. The Supreme Court decides.

Pete Boggs said...

That's pathetic. If they're referencing your blog & its criticism of them- they're mission distracted & confused. Retaliation by abuse of process, demonstrates a lack of discipline.