Since my case was handed down two days ago, I've been praised by my fellow attorneys for standing up to the Commission, for making public how the agency operates and the tactics that it engages in. Those attorneys often share with me their horror stories of how they were treated by the Commission and how it has hurt them, sometimes destroyed them, professional and financially. It's sad. The legal profession deserves better.
I am a student of government. I have worked in every branch of government, been involved in politics, and taught political science, i.e. government, at the college level for more than 20 years. There is an ironclad rule of government operations that says if an agency is allowed to operate without meaningful oversight or without transparency, the agency will inevitably begin abusing the power it has been given. Some would call it corruption. Over the years, we have seen that with regard to the Internal Revenue Service and the National Security Agency.
The Indiana Disciplinary Commission operates with no real oversight by the members of the Indiana Bar (the members of the Commission are appointed by the Indiana Supreme Court) and its operations are shielded from any meaningful review by secrecy rules the Commission jealously defends. Of course, the confidentiality rules are supposed to be about protecting attorneys who might be wrongfully accused of misconduct. They were never intended to protect the Commission from its own misconduct.
Thus, the Commission operates: 1) in secrecy; and 2) without meaningful oversight. Is there really any surprise that we're seeing problems with the Commission abusing its powers? We should EXPECT those abuses considering how the Disciplinary Commission is set up and is allowed to operate.
It is clear that the appointed members of the Disciplinary Commission have done absolutely nothing to curb the poor priorities and misguided disciplinary prosecutions of the current Executive Secretary Michael Witte or his predecessor, Donald Lundberg. While attorneys all over the state are doing unethical things that hurt people (like stealing money from trust accounts), the Commission has devoted enormous resources to go after attorneys for minor alleged violations that have nothing to do with unethical behavior that hurts people who come into contact with the legal system. Further, and more disturbingly, the Commission appears to be engaging in politics in the charges it files and how their "investigations" are carried forward. The tip off to the fact that this is going on is that attorneys are terrified of publicly criticizing the Commission because they know in the past the Commission has retaliated against anyone who challenges its authority.
The Indiana Supreme Court needs to let the Indiana bar pick the members of the Disciplinary Commission. You can bet the first election under such a system will involve campaigns by reformers who want to end the abuses and misguided priorities of the Commission.
We also need much more transparency about the operations of the Commission. The agency shouldn't be able to use confidentiality rules designed to protect attorneys to instead shield any sort of meaningful review of how it operates.
I hope the Indiana Supreme Court has an appreciation for the enormous power of the Commission and how it has in the past abused its power to destroy attorneys personal and professional lives. Defending oneself against allegations of misconduct by the Commission can cost tens if not hundreds of thousands of dollars in attorney's fees and lost business. It can permanently damage one's career. Yet there are no rules governing how the Commission conducts its investigations or how long it can keep grievances hanging over attorney's heads. Although the term "due process" governs the operations of our legal system, when it comes to attorney discipline there is no such thing as due process.
I know that first hand. I had a ONE SENTENCE grievance filed against me by the Commission, a claim that I had lied in a grievance I had filed four years earlier involving the conduct of a magistrate. The Commission was never made to produce any evidence in support of that ONE SENTENCE claim and yet it was allowed to hang over my professional career for at least 14 years by the Commission's own admission. Actually the Commission never bothered to tell me the grievance filed in 1994 was dismissed in 2008, until 2013.
Just recently I was prosecuted on a count involving sending an "ex parte" letter to Marion County judges about the process they are supposed to be following when dividing up the money at the end of a civil forfeiture proceeding. The Commission knew darn well that it was not "ex parte" and that it was not a violation of the rules. Yet the Commission was allowed to zealously prosecute this bogus charge and I had absolutely no right to seek summary dismissal of it. The Indiana Supreme Court agreed that what I did was not a violation of the rules. Then why was I forced to spend so much time and money to defend myself against the charge? And why aren't their consequences for the Commission pursuing a completely meritless charge?
To conclude, the Indiana Bar needs an ELECTED Disciplinary Commission and the Supreme Court needs to rewrite the rules so that there are much, much more transparency in the operations of the Commission.
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