Hearing Officer Criticizes Indiana Disciplinary Commission for its Handling of Advertising Disciplinary Case

The Indiana Lawyer has an excellent article about the poor proprietorial decisions of the Indiana Supreme Court Disciplinary Commission when it came to a recent advertising disciplinary case:

A recent Indiana attorney disciplinary order quickly gained the notice of the ABA Journal and legal blogs, prompting some analysts to predict the ruling would have a chilling effect on lawyers here and around the country. But the case also involved pursuit

of discipline that a court-appointed hearing officer called “disconcerting.

The Indiana Supreme Court’s April 11 opinion, In the Matter of: Anonymous,

Crown Point Attorney Tim Kelly

45S00-1301-DI-33, concluded a protracted attorney discipline case with a private reprimand. The lawyer was found to have made misleading communications regarding legal services offered in testimonials, and he failed to include his office address on a promotional item.

Let me stop there.  Once the Disciplinary Commission files charges, they are public, and any reasonable hope of an actual "private reprimand" is extinguished.  It didn't take much effort on the part of Indiana Lawyer writer Dave Stafford to figure out who the attorney is.

The article continues:

But the offending testimonials weren’t on the attorney’s website. They appeared on the website for Law Tigers, a network of the American Association of Motorcycle Injury Lawyers that the lawyer subscribed to. Additionally, the promotional item that lacked an address did conform with advertising rules at the time it was produced. After a rule change added a requirement that office addresses appear on advertising, the lawyer acknowledged the change escaped his notice. Once aware of the rule change, he added his address to Law Tigers promotional items that he passed out at biker events, according to the record.

A cursory review of the case reveals that anonymous is Tim Kelly, a longtime Crown Point personal injury attorney. A closer examination of the record suggests Indiana Supreme Court Disciplinary Commission attorneys went too far and employed tactics in prosecuting the case against Kelly that may have violated Rules of Professional Conduct.  (My emphasis.)

“My father practiced law in Indiana for 30-plus years and never had a disciplinary issue. I’ve practiced law for almost 42 years and this is the only discipline issue I’ve ever had,” Kelly said. “I’ve worked extremely hard to be ethical, honest, successful and recognized as a good lawyer. … It is really devastating that something like this resulted in me being disciplined.”

The Supreme Court disciplinary order makes no mention of problems with the commission’s investigation. But Lake Superior Magistrate Michael Pagano, who presided as hearing officer, concluded his sometimes-blistering report to the court by writing that he initially believed the commission “overreached.”

When questioned about the propriety of the prosecution, Disciplinary Commission Executive Secretary Michael Witte passed the buck to staff attorney Frederick Rice in order to speak for the Commission:

 Rice downplayed Pagano’s criticism of the commission’s prosecution of Kelly’s case. “The Supreme Court certainly did not address those issues in their opinion,” Rice said. “I doubt they put a lot of importance on that, I don’t know.”

Indiana Disciplinary Commission
Executive Secretary Michael Witte

What is remarkable is that Kelly went to extraordinary lengths to make sure he was following the rules and yet the Disciplinary Commission zealously prosecuted him anyway:

Before signing with Law Tigers, Kelly sought an opinion from the Disciplinary Commission, which it declined to provide, according to the record. He also sought an opinion from the state bar and consulted with nationally recognized attorney Lynda Shely, outside ethics counsel to AAMIL and a longtime director of lawyer ethics for the State Bar of Arizona.

“Quite frankly, it appears to Mr. Kelly that the Commission’s attempt to use him as a test case amounts to a due process violation because the Rules of Professional Conduct certainly do not make it clear that participation in (Law Tigers’) group advertising is a violation of the Rules,” Mulvaney argued in a brief to the court.

Pagano saw abuses and irregularities, too.

“The commission was well aware of (Kelly’s) due diligence,” Pagano wrote. “In fact, following receipt of his submission, the commission sent (Kelly) a letter informing him it would not be pursuing charges against him. The commission, for reasons unclear, then reversed itself and proceeded with the instant matter.”

Pagano noted in his findings that Rice had difficulty articulating a proposed sanction when asked, ultimately saying, “… that’s not the important part of this. The discipline is not the important part. It’s a determination of what the rules require and what they say.”

“(T)he idea that (Kelly) should be used as a mere instrument to re-write an exceptionally unsettled area of law troubles me deeply, especially in light of the great lengths (Kelly) went to in ascertaining whether his participation in AAMIL would cause him disciplinary grief,” Pagano wrote.

Other questions need to be asked. How much did the Kelly prosecution cost in terms of time and money?   How much did Kelly have to pay to defend himself?  How much did it hurt his career while the charges were pending?  Those are real consequences from the Commission's ill-advised, zealous prosecution of Kelly that need to be considered by the Court.

It's just a hunch but I believe there is substantial dissatisfaction with Executive Secretary Witte's leadership of the Commission.  I'd be surprised if his tenure is not near the end.  If the Court appoints new leadership of the Disciplinary Commission, it needs to insist that the new Executive Secretary reset the Commissions' priorities so they are focused on protecting he public from unethical attorneys and not spending enormous resources on pursuing attorneys for minor alleged rules violations..  The Court also needs to do a thorough investigation of the Disciplinary Commission's grievance and charging practices, providing attorneys with anonymity as they will certainly be fearful that the Commission will retaliate against anyone who publicly criticizes the Commission, a fact I know all too well.  There also needs to be much more transparency on Commission activities.  It is a law of government bureaucracy that when agencies are allowed to operate in secrecy, the result at the very least is bureaucratic misconduct.  The confidentiality rules governing the Commission are designed to protect attorneys not protect the Commission and its employees from their own misconduct which in this case may have violated the very disciplinary rules the Commission is supposed to enforce.

Is Brewington v. State a Harbinger of a New Era Allowing Judicial Criticism by Attorneys?

A number of attorneys have contacted me recently excited that the Brewington v. State decision handed down last week by the Indiana Supreme Court may signal a new tolerance for attorney criticism of judges.  Although the non-attorney blogger's conviction for intimidation of the judge was upheld, very strong language in the opinion suggests that non-threatening criticism of a judge is constitutionally protected.

Brewington, which was written by new Justice Loretta Rush, begins:

Justice Loretta Rush

The United States and Indiana constitutions afford sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic.

"Intemperate" is an interesting word.  When the American Bar Association in the early 1980s adopted Model Rule 8.2, the rule that governs an attorney's comments regarding judges, judicial candidates and others, the ABA specifically declared that Rule 8.2 was a constitutionally-required actual malice standard and that it was rejecting the previous rule (EC 8-6) that required that a lawyer who criticizes judicial officials "should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism..."  The ABA said that the rule had been misused to "penalize criticism considered intemperate in tone." (Emphasis supplied.)

Dictionaries define "intemperate" to mean "having or showing a lack of self-control," "immoderate," "unreasonable," "lacking self-control."  Despite Model Rule 8.2 and its commentary, states across the country, including Indiana, have used Rule 8.2 to sanction attorneys for "intemperate" criticism of judges while holding that judges, among all other public officials, deserved special protection from criticism by attorneys.  One of those Indiana cases involving an "intemperate" comment involved a tenant's attorney who outside the courtroom referred to the (Marion County) Washington Township Small Claims Court as a "Mickey Mouse Court" because the landlord's attorney appeared to be running the court.

In Brewington, the Indiana Supreme Court drew a line between threats to one's reputation and threats to harm:

Fear for one’s reputation is often the price of being a public figure, or of involvement in public issues. But fear for one’s safety is not.

Here, the Court of Appeals failed to distinguish between those two types of fear. Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations—hyperbolically accusing them of “child abuse” and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional “actual malice” standard for defamatory speech, and the Court of Appeals erred in relying on them to support Defendant’s convictions for intimidating a judge and attempted obstruction of justice.

The very-well written opinion then proceeds to analyze the facts, determining which of Brewington's comments only threaten reputation and those which could be credibly seen as threats of physical harm.  The Court concluded that some of Brewington's comments were constitutionally protected while others an objective viewer would conclude that other comments, considering a totality of the circumstances,  constituted threats of harm.

Brewington though still had a chance to win.  The key part of the Supreme Court appeal turned on the Court's discussion of the instruction on the crime of intimidation which requires a "threat" which is defined by statute as:

“Threat” means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person’s legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.
I.C. § 35-45-2-1(c).

As the Supreme Court, notes, some of those statutory "threats" - such as one saying that a "threat" is exposing a person to hatred, contempt, disgrace, or ridicule" would improperly make criminal constitutionally protected speech  Thus, when the trial court included all the "threats" listed in IC 35-45-2-1(c) in its instruction, the trial court left open the possibility that the jury didn't find Brewington guilty because he physically threatened the judge, which would be unlawful, but because he exposed the judge to "hatred, contempt, disgrace, or ridicule," which would be constitutionally protected speech.

The court disposed of this contentious issue by reviewing the record and concluding that the failure to object to the definition was part of an "all or nothing" strategy of Brewington's defense counsel.  Thus, counsel "invited the error" and thus the alleged error could not be successfully raised on appeal.

The Court began its conclusion with another strong phrase suggesting that criticism of judges will be treated the same as criticism of any other public official:

It is every American’s constitutional right to criticize, even ridicule, judges and other participants in the judicial system—and those targets must bear that burden as the price of free public discourse.

While the language looks indefeasible, I am not yet convinced that the Indiana Supreme Court will conclude at the end of the day that "every American" includes attorneys.  While the U.S. Supreme Court has taken the position that attorneys are no different from other members of the public when it comes to having a First Amendment rights, with the only exception is when an attorney is speaking out about a pending case in such a way as to possibly influence the administration of that case, state supreme courts have ignored those precedents to impose harsh sanctions on attorneys for criticizing judges even without a pending case.  Indiana has led the way in laying the groundwork for those lines of cases.  In the 1979 case, In Re Matter of Terry, the Indiana Supreme Court concluded that shielding judges from attorney criticism protects the public by preserving "a fair, impartial judicial system and the system of justice as it has evolved for generations."  Thus, the Terry Court concluded that, because of this important interest, the First Amendment does not protect attorneyspeech critical of judges, thus cloaking judges with more protection from criticism than every other public official.  Later decisions by the state supreme courts, including Indiana, have continually cited Terry with approval while concluding attorney speech critical of judges is not constitutionally protected.

Is Brewington the dawning of a new era when it comes to courts recognizing the constitutional right of attorneys to criticize judges?  I hope so, but I remain skeptical.