Friday, January 3, 2014

WARNING: Attorneys Responding to IndyBar Judicial Survey Can Be Charged with Misconduct

The Indianapolis Bar Association just emailed its annual survey.  What IndyBar is not telling attorneys is that if they answer the questions at the bottom of this page they can easily be charged with violating Rule 8.2 by the Indiana Supreme Court Disciplinary Commission. 

The Commission takes the position that Rule 8.2 applies to any public or PRIVATE criticism of a judge, that it applies to even opinions about those judges and that it will be the the burden of any attorney charged with misconduct to prove that his criticism, again even the expression of an opinion, is true.  The hearing officer in my case also takes the position that Rule 8.2 applies to private criticism.  Attorneys need to know that even though Rule 8.2 might look the NY Times v. Sullivan actual malice standard, it is not interpreted that way.  If you criticize a judge, in a public or private forum, that criticism (again even statements of opinions) is assumed false unless the attorney who makes the comment can prove it to be true. 

I would strongly advise attorneys not to answer the survey, but if they do, not to offer any critical comments with respect to judges or judicial candidates.  The Disciplinary Commission would have no problem getting its hands on those surveys and can obtain emailed responses from attorneys as well.  I know very well that the Commission has no problem charging attorneys for criticism in private emails.

Below is the survey:

The Indianapolis Bar Association ("IndyBar") has played a vital role in educating our community about the judicial system since 1878. Today this continues through our effort to evaluate the qualifications of candidates for judicial office in 2014.

Please accept this invitation to review our survey and, if appropriate, complete it. The candidates identified in the survey have indicated their intent to seek judicial office in Marion County in the 2014 election. Your answers should be based upon your knowledge of the candidates' qualities, taking into consideration your direct professional contact with them within the past three years. Please know your responses will be confidential and optional comments, if any, will remain anonymous.

The survey is self-explanatory, and it will remain available to you for completion until 5:30 p.m. Monday, January 20, 2014. Only one response per recipient of this survey will be accepted and only responses from email addresses receiving this survey directly from IndyBar will be counted. This is to protect the integrity of the survey group.

We appreciate your candor and trust your responses will accurately reflect your own opinions. The response of each survey recipient is critical to the success of this survey.

We thank you for your insight, assistance, and recommendations.

....

The Indianapolis Bar Association Judicial Excellence Committee
Chair: Andrew Mallon
Members:  Tamara McMillian, Ryan Vaughn, Alex Will, Ahmed Young Counsel to the Committee:  Tom John Indianapolis Bar Association President:  Jeffrey Abrams

Not to distract from the point of this article, but I can't help but roll my eyes at some of the members of the committee, including the current IBA President.  It's always been easy to rig these surveys to trash certain candidates and given the committee makeup I have no doubt that would happen this year.

Back to the subject, I have also obtained copies of the questions on the surveys.  Again, a warning. Answering these questions can subject an attorney to discipline, including suspension or disbarrment.

***



Have you had direct professional contact with any of the following judicial candidates in the past three years?

Cynthia J. Ayers Kimberly J. Brown Rom Byron Karen Celestino-Horseman David J. Certo Annie Christ-Garcia Barbara Cook Crawford Angela Dow Davis Patrick "PJ" Dietrick David J. Dreyer Kurt M. Eisgruber Shatrese M. Flowers Therese A. Hannah Mark A. Jones Christina R. Klineman Jonathan C. Little Sheryl L. Lynch Gary L. Miller Marilyn A. Moores Timothy W. Oakes James B. Osborn Marcel A. Pratt, Jr. Marc T. Rothenberg Todd A. Woodmansee

Yes  no

Because you have had direct professional contact with one or more judicial candidates, please begin the survey. Your candor and insight are appreciated.


How would you rate XXXXX on the following:


1 (Strongly Disagree)

2

3

4

5 (Strongly Agree)

No Opinion



 This person is hard-working.

*How would you rate XXXXX on the following: This person is hard-working. 1 (Strongly Disagree)

This person is hard-working. 2

This person is hard-working. 3

This person is hard-working. 4

This person is hard-working. 5 (Strongly Agree)

This person is hard-working. No Opinion

This person is well-prepared.

This person is well-prepared. 1 (Strongly Disagree)

This person is well-prepared. 2

This person is well-prepared. 3

This person is well-prepared. 4

This person is well-prepared. 5 (Strongly Agree)

This person is well-prepared. No Opinion

This person is efficient at case management.

This person is efficient at case management. 1 (Strongly Disagree)

This person is efficient at case management. 2

This person is efficient at case management. 3

This person is efficient at case management. 4

This person is efficient at case management. 5 (Strongly Agree)

This person is efficient at case management. No Opinion

This person is ethical.

This person is ethical. 1 (Strongly Disagree)

This person is ethical. 2

This person is ethical. 3

This person is ethical. 4

This person is ethical. 5 (Strongly Agree)

This person is ethical. No Opinion

This person is impartial.

This person is impartial. 1 (Strongly Disagree)

This person is impartial. 2

This person is impartial. 3

This person is impartial. 4

This person is impartial. 5 (Strongly Agree)

This person is impartial. No Opinion

This person correctly applies the law.

This person correctly applies the law. 1 (Strongly Disagree)

This person correctly applies the law. 2

This person correctly applies the law. 3

This person correctly applies the law. 4

This person correctly applies the law. 5 (Strongly Agree)

This person correctly applies the law. No Opinion

This person demonstrates the proper temperament and demeanor expected of a judge.

This person demonstrates the proper temperament and demeanor expected of a judge. 1 (Strongly Disagree)

This person demonstrates the proper temperament and demeanor expected of a judge. 2

This person demonstrates the proper temperament and demeanor expected of a judge. 3

This person demonstrates the proper temperament and demeanor expected of a judge. 4

This person demonstrates the proper temperament and demeanor expected of a judge. 5 (Strongly Agree)

This person demonstrates the proper temperament and demeanor expected of a judge. No Opinion


I recommend XXXX for judicial office.   Yes    No


I recommend XXXX for judicial office.   Yes     No


General comments regarding the candidate (optional):

7 comments:

guy77money said...

looks like legal foder for your case Paul - can ya get hold (heck whats the legal term???) any of the old surveys???

Paul K. Ogden said...

Probably too late for that. But the point is probably pretty obvious even without completed surveys.

Paul K. Ogden said...

Any attorney who fills one of those out can be charged with having violated Rule 8.2 by their comments and be put into a position where they have to spend the next year or so more, at the cost of thousands of dollars and hundreds of hours of their time, trying to prove their comments about the judge, even statements of opinion, are true.

Bill said...

Paul,
It is not just the comment section that could subject an attorney to discipline. The way the DC is interpreting the rule, even the direct answers can.

guy77money said...

Dhhhh Your right guys! Any judge who gets a bad rating could subpena these surveys get the names and hammer the attorneys? Right?

Stephen R. Diamond said...

Perhaps it's because I don't fully understand Indiana, but I'm skeptical that prosecution could result from an unfavorable comment in this survey. There's the question of notice. How can the Disciplinary Commission claim that attorneys have been given reasonable notice that answering the survey absent proof in hand violates the rules when it invites responses and promises confidentiality? It seems to me (speaking tactically) that the better approach is to use the survey against the charges. By providing annual anonymous surveys of about judges, the Bar puts attorneys on notice that criticism of judges without proof of their wrongdoing is acceptable. Then, they turn around and prosecute attorneys for offering opinions (in other venues). In your case, it raises a due-process issue. You had every reason to assume that rule 8.2 does not proscribe criticism of judges, since criticism is invited by the Bar.

Kilroy said...

Hat tip, Kilroy!