Another story about the judge is more closely related to the subject of this blog. We had written an opinion that didn't sit well with an older attorney who was on the losing side. In a rehearing brief, the attorney slammed Judge Buchanan and the other two appellate judges on the panel using a derogatory term to refer to the trio in the brief. I showed it to the judge, expecting him to take offense. Instead Judge Buchanan laughed and said the attorney was just blowing off steam and it was no big deal. Then he proceeded to say something I'll never forget: "Part of the job of being a judge is to accept criticism, even comments like that attorney made. If a judge is not able to do that, that person shouldn't be a judge." Those words turned out to be a harbinger of my future two decades later.
I went on to other legal positions both in and out of government, including spending years in private practice. In a quarter century, I had never received so much as a private reprimand as an attorney. But in this, my 26th year, I find myself on the verge of losing my license for the horrific offense, sarcasm intended, of criticizing a trial judge's handling of an estate case in private emails.
Indiana has a lengthy history of punishing attorneys for judicial criticism. Indeed a review of various state disciplinary cases across the country suggest that Indiana, under the guise of protecting the public and the integrity of the judicial branch, has led the way in imposing additional restrictions on attorney speech critical of judges than the United States Supreme Court has allowed with respect to criticism of other public officials.
I do not accept, and will never accept, that the law license I received in 1987 came with a restriction on my right to speak out about issues relating to my profession and the judiciary, including criticizing judges. Justice Kennedy, inn the 1991 case, Gentile v. Nevada, took aim at this unconstitutional approach:
We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.If my career as a practicing attorney is indeed coming to an end, I will not be terribly disappointed. The day-to-day practice of law has become a burden. While I enjoy helping people, dealing with their personal issues on a daily basis can be exhausting. When so often the judicial system can offer no relief for clients I know have been harmed, frustration sets in. Unfortunately the intellectual challenges, which I enjoyed so much as an appellate law clerk, are rarely present in litigation. My efforts to be elected to the bench in 2012 were unsuccessful and this current disciplinary matter, regardless of the outcome, will probably make any appellate judicial appointment in the future unlikely. I am stuck practicing law and frankly I'm tired.
One thing that has given me great pleasure in life is being able to speak out about the various issues of the day. During my last few years, I've been provided a greater opportunity to do that through my Ogden on Politics blog. I plan to continue that blog, focusing more on politics than legal issues.
However, my disciplinary case, as unpleasant as it has been, has opened my eyes to a very important battle going on that affects my profession and the judicial branch. Attorneys from all over the country have contacted me to tell me stories of their being charged with disciplinary violations for their speech, including charges so outrageous that mine seems mild by comparison. An attorney out west was put in jail for three days for criticizing a judge in a motion to withdraw. Down south, an attorney is charged for criticizing a judge in an email he sent only to the judge complaining about the public comments he had made about a case he had before the judge. Then you have attorneys charged for judicial criticism for saying something negative about a judge on internet bulletin boards, Twitter and Facebook. But it is not just criticism of judges, in a very recent case an attorney has been suspended for two years for his writing to another attorney saying he had not been honest in how he handled a case on which they had been on opposite sides.
In all these instances, state disciplinary bodies are spending enormous resources prosecuting attorneys when they could instead be focused on dishonest lawyers who continue to hurt the public. Of course, the dubious justification for these disciplinary prosecutions is that attorney criticism harms the public and thus should be sharply limited. There is no actual evidence that supports this claim, however, which not so ironically is same justification the Federalists used in passing the 1798 Sedition Act which criminalized criticism of the President and members of Congress. As Justice Black's quote at the top of this blog says, limits on speech critical of the judiciary would "probably be more likely to likely engender resentment, suspicion, and contempt than enhance respect" for judges.
In addition to these speech prosecutions diverting precious resources from pursing unethical attorneys, these prosecutions hurt the public in another way. They have an enormous chilling effect on attorney who might otherwise speak out about judicial misconduct. We attorneys sit as the primary, and often the only, persons positioned to blow the whistle on judicial misbehavior. When attorneys see their colleagues given lengthy suspensions and even disbarred for criticizing judges, attorneys understandably will no longer speak out. As a result, matters of judicial misconduct continue on for much longer if they are ever uncovered at all. The public is harmed even more.
Aside from policy reasons that attorneys should be allowed to criticize judges just like other citizens, the Constitution demands it. The United States Supreme Court has said that attorneys are just like everyone else when it comes to free speech with the exception of when their public speech might obstruct with the administration of justice in a pending case. It is case law that numerous states have simply ignored in their zeal to protect their judicial colleagues from criticism. That judicial protection from criticism is arrived at by the state courts carving out an unconstitutional exception to the First Amendment that goes beyond the limited "actual malice" exception to criticism of public officials set out in New York Times v. Sullivan.
My hope with this blog is to tell attorneys' stories, to highlight the abuses of attorney free speech going on in the states, and to outline the constitutional guarantees that protects attorney free speech. As I write this blog, the First Amendment continues to be ignored as states increase their prosecutions of attorney speech critical of judges, an increase commensurate with new modes of communication that make such attorney criticism of judges easier. It is hoped that this blog will supplement a book project on the subject of attorney free speech that I hope to complete this summer.
Again, I want to tell stories on this blog. Please feel free to contact me below and tell me your story. I can be reached at:
Paul K. Ogden