Saturday afternoon, I received a knock at my door. It was my postal carrier. He come bearing a new grievance filed against me by Executive Secretary Michael Witte of the Indiana Supreme Court Disciplinary Commission. I wasn't surprised. I know how the Disciplinary Commission has operated under former Executive Secretary Donald Lundberg and now Witte. The Commission has long ceded as its primary mission enforcing the rules to protect the public from unethical attorneys. Rather, under Lundberg and Witte the Commission has become a tool to go after critics and other attorneys the Commission doesn't like. They have been relentless in that goal. When an attorney who fights charges escapes the disciplinary process with his license intact, other charges almost inevitably follow. The Commission will continue until it gets the attorney's license or the attorney gives up and leaves the practice of law.
|Michael Witte, Executive Secretary|
Indiana Disciplinary Commission
Witte's grievance this time is that I wrote about my interaction with Shirley Justice, the young mother who was shot 14 times outside a day care facility on the northwest side of Indianapolis. Ms. Justice had contacted me about filing a "lazy judge" praecipe against Judge Patrick McCarty who had pending before him a petition for modification of child custody that was over 90 days. She pleaded with me to represent her. I told her I couldn't, but discussed the lazy judge process with her, reviewed the docket, and reviewed the lazy judge praecipe she drafted pro se.
She by fax tried to file the lazy judge praecipe Monday morning. She then contacted me upset, reporting to me that talked to a clerk in the office and that even though she had faxed it nearly the first thing that morning, an order on her case had been entered ahead of the motion. Her lazy judge praecipe was deemed moot. As I indicated to her, that's not the first time I had heard it alleged that Judge McCarty will execute an order for filing ahead of a lazy judge praecipe, thereby mooting the praecipe. Judges hate lazy judge praecipes because they trigger a disciplinary type process in which the judge has to explain to the Supreme Court why a timely ruling was not made.
What to do? I reported what happened in Judge McCarty's court to counsel for the Judicial Qualifications Commission and the State Court Administrator. Apparently they didn't buy it either that the order was done before the praecipe. The Supreme Court ordered that the praecipe be shown as having been filed first. The case was removed from Justice McCarty's court.
I didn't plan on writing about what happened until Ms. Justice, while outside a day care center dropping off her child, was shot 14 times, allegedly by her ex-husband.
In the grievance, Witte fails to identify any disciplinary rule I violated but suggests from the my article
in which I reported what Ms. Justice said and her
allegations regarding Judge McCarty improperly revealed confidential information from my discussion with the potential client.
It is not clear by what authority Disciplinary Commission Executive Secretary Michael Witte thinks he has to assert a potential client's confidentiality rights. It is not clear under by what authority that Witte believes that an attorney can be sanctioned for revealing information that a client had no problem revealing.
I have since talked to Ms. Justice. I confirmed that Ms. Justice had no problem with my including the information of our discussions in the article and, in fact, approves of what I
wrote. She has also talked to the media. She wants her story
out, including what she believes Judge McCarty did to her.
Before filing a grievance asserting that I had violated Ms. Justice's confidentiality rights, neither Mr. Witte nor anyone at the Commission bothered to talk to Ms. Justice.
This is consistent with the fact that the Commission made no effort to talk to me or any of my witnesses before filing charges based on my sending emails criticizing a Hendricks County judge and my writing a letter educating judges about how civil forfeiture proceeds were to be divided.
One thing is clear though. What Witte did by filing that new grievance against me is nothing more brute retaliation for my criticizing him and the Commission and, in particular, my doing my job of reporting what happened to Ms. Justice in Judge McCarty's court. I tried to blow the whistle on possible judicial misconduct and Witte doesn't like that. It's exactly because of Witte's approach that we have Indiana attorneys remaining silent when faced with judicial misconduct.
I am undoubtedly the biggest public critic of Witte and the Commission. Time after time I have seen the Commission fail to go after unethical attorneys who are doing great harm to the public while instead devoting enormous resources to going after attorneys who allegedly commit petty offenses, but have instead committed the greater offense of offending the Commission. In that regard, I have no doubt that Witte will continue to file things against me until he assures I no longer have an Indiana law license. He has devoted enormous Commission resources to that goal and will not quit until he is successful.
The Disciplinary Commission has been allowed to operate with very little oversight and no transparency for years. It is axiomatic that any government agency that is allowed to operate under such circumstances will at best end up corrupt and at worst will end up with authorities in that agency abusing their power. Clearly Witte is not above abusing his authority to target critics with the enormous power of the Disciplinary Commission, a fact I've personally experienced multiple times.
Witte, who is
actually an appointment by former Chief Justice Randall Shepard, clearly
lacks the temperament and judgment to sit as Executive Secretary of the
Disciplinary Commission. He needs to be fired and the Commission's
activities thoroughly investigated. Every attorney I know is terrified of speaking out about problems with the Disciplinary Commission because of fear of retaliation. Nobody I have ever met though thinks the Commission is doing a good job or that its processes shouldn't be thoroughly investigated and reforms of the disciplinary process instituted. The time for that is long past due.