Indiana Disciplinary Commission Doubles Down on Retaliation Against Ogden; Points to Need for New Leadership

No one though should accuse Executive Secretary Witte of not being persistent.  With his prosecution of me apparently not being well received before the Supreme Court, he filed a new grievance against me.  This time Witte is claiming that I violated the confidentiality of a person who contacted me about filing a lazy judge motion against Marion County Judge Patrick McCarty who she believed had mishandled her child custody case, leaving her child in danger.  The potential client had reached out to me because she had found my blog and wanted legal representation and her story told.  I informed her I could not represent her because McCarty had been a witness against me with regard to one of the grievances Witte had filed.  I didn't want it to look like my filing a lazy judge praceipe was retaliation against Judge McCarty for testifying against me.

Executive Secretary Michael Witte

A few days later the woman was shot 13 times by her ex outside a day care center on the northwest side of Indianapolis.  I wrote on my blog about her being shot and the lazy judge praecipe she filed pro se that Judge McCarty had attempted to reject but was overruled by the Indiana Supreme Court.  On my blog, I wrote about my having talked to the woman about legal representation.  (By the way, the fact that an attorney and possible client meet and discuss possible legal representation is not in and of itself protected by attorney-client privilege.)   The woman unbelievably survived the shooting.  Although she said she had no problem with the article I wrote, that did not stop Witte from filing a grievance against me, without even talking to her, in an effort to claim the woman's confidentiality rights had been violated. 

One would think Witte would have been chastised by the Supreme Court opinion in my case rejecting almost the entire Disciplinary Commission's prosecution of me.  Not so. The Commission is doubling down on its retaliatory efforts  Apparently the very Disciplinary Commission attorney who prosecuted me and badly lost, who was also the interim Executive Secretary of the Commission between Donald Lundberg's tenure and Michael Witte, is personally conducting an investigation of the new grievance.

One of the biggest complaints from Indiana attorneys is that they can't speak out about the disciplinary process because they might face retaliation from the Indiana Disciplinary Commission.  Indeed when I first wrote about the Commission in January 2011, and its targeting of small firm and sole practitioners almost exclusively, I immediately appeared on the radar of Executive Secretary Michael Witte who within a matter of months began filing grievances against me. 

The Executive Secretary has almost absolute power when it comes to dragging attorneys into the disciplinary process.  Even if the Commission loses, the attorney's career is often irreparably damaged and the attorney forced into paying tens of thousands of dollars in legal fees and expenses Thus, the Executive Secretary needs to be someone with good temperament and who is above using his or her position to retaliate against critics and those who best the Commission before the Supreme Court. 

People should reminded that this is not the first time Witte appears to have used his official position  to seek retaliation against people who oppose him.  Witte began his career at the Disciplinary Commission with a grievance filed against him alleging he had abused his position as county attorney to settle political scores.  Republicans in Dearborn County had backed a different candidate in the primary against Witte, who was then Dearborn County Superior Court Judge.  Witte then became county attorney and used his position to ask that a couple Dearborn County politicians, who had supported his opponent in the primary, be prosecuted for Hatch Act violations.  The feds rejected Witte's efforts, deciding there were no Hatch Act violations in Dearborn County.  No word on what happened to the disciplinary grievance filed against Witte but you can bet with Witte assuming the helm it went nowhere.

It's time that the Indiana Supreme Court remove Witte from his position and appoint a new Executive Secretary who has a better temperament and who will refocus the efforts of the Commission on going after unethical attorneys whose conduct endangers the public.

University of Denver Law Professor Loses Attempt to Silence Blog Critic Through Disciplinary Process

An update to a story I wrote about this past January, the blog Outside the Law School Scam reports that the  University of Denver Law Professor Nancy Leong has lost her attempt to get an attorney who criticized her anonymously disciplined.  The investigation (why was there one to begin with?) has closed. 


In my earlier article I quoted from Jonathan Turley's article on the same subject:

There is a free speech controversy swirling around an ethics complaint in Illinois brought by University of Denver law professor Nancy Leong. Leong runs a blog site called Feminist Law Professors and recently discovered the identity of an anonymous commenter who has, according to Leong, left racist and sexist comments. She says that he is a a public defender in his late 40s and she wants him punished for his comments. We have discussed the free speech rights of public employees in an earlier column and blog postings, including the right to speak on blogs and Internet sites. The actions of Leong are troubling for those of us who believe strongly in free speech values, including the right to anonymity.   

The poster used “dybbuk” in posts that referenced Leong. In one post, he talks about a

Prof. Nancy Leong

28-year-old law grad and wrote “I think she has the right age, gender, credentials, and eager-to-please attitude for an ‘odd job’ I have in mind . . . Basically it involves the girl dressing up as a law professor, bending over, and trying to ask me questions about International Shoe while I spank her with a wet slipper.” He also criticized Leong, including her presentation in Hawaii on “racial capitalism,” stating “Now that is what I call a gravy train or, shall I say, a luau train. Law professors enjoying a free Hawaii vacation at some seaside hotel. All they have to do is attend some ‘annual meeting’ of some ‘society’ where they pretend to listen to Leong yap about ‘pragmatic approach[es] of reactive commodification,’ while undressing her with their eyes.”

Leong found dozens of references about her on five different websites as part of her investigation, including disparaging her scholarship and describing her as “a comely young narcissist” and a “law professor hottie.” She also said that other professors that he criticized on these various sites were overwhelmingly directed at women and professors of color. She considers anonymous postings with sexist elements to be unethical. She writes in the complaint that “There are over 6,000 tenured and tenure-track law professors in the United States have less practice experience than I do. Most of them have weaker publishing records than I do. Most of them have weaker teaching evaluations than I do. Almost all of them have been members of the legal academy longer than I have. Almost all of them have more power and prominence than I do. In light of these facts, it is difficult to think of a reasonable explanation for [dybbuk's] obsessive attention to an untenured professor.”

As I noted at the time, Turley was far too kind to Prof. Leong who, as a law professor, should have had a lot more respect for the First Amendment and a free exchange of ideas than she apparently does.  But Prof. Turley finishes on the right note:

...Leong proceeded to file a formal complaint. That is where I have to respectfully disagree with Professor Leong. The effort to punish this poster threatens free speech and creates a chilling message for those who wish to engage in discussions on an anonymous basis. I know that that is not her purpose but she is attempting to discipline a person for criticizing her and engaging in language that she finds offensive. That is anathema for most civil libertarians even though most of us find these writings to be offensive and insulting. As academics, we owe a special duty to free speech and the need to preserve protected spaces for such speech on campus and the Internet. This is precisely why it was so alarming to see Jewish students recently seek to strip anonymity for posters of material that they find objectionable. Free speech comes at a cost, particularly for those who become public figures. The Internet is rife with hateful and false statements. However, it is also the single greatest advance in free speech in history. I am confident that the work of Professor Leong will be remembered long after dybbuk has passed into well-deserved obscurity. However, this should not be part of that legacy.

Do Disciplinary Commisson Attorneys Have An Obligation to Be Honest With the Indiana Supreme Court?

Since the Disciplinary Commission in Indiana is an arm of the Indiana Supreme Court are its attorneys, who are Supreme Court employees, exempt from ethical rules when filing documents with the Supreme Court?

I ask that because throughout my more than year long ordeal with the Disciplinary Commission's over-the-top prosecution of me for criticizing a judge in a private email and sending a letter to judges explaining the law that's supposed to be followed when divvying up civil forfeiture assets, I have had to deal with a Commission attorney - actually an attorney who was acting Executive Secretary of the Commission between the terms of Donald Lundberg and Michael Wittte - who has been  more than willing to make knowingly false representations to the Indiana Supreme Court, sometimes in the form of intentionally omitting information and other times simply lying to the Court.

It began with the Commission in filing formal charges against me claiming I had engaged in "ex parte communication" with Marion County judges by sending the civil forfeiture letter.    Of course the letter I sent was not ex parte, which the Commission knew.  I had copied the letter to the prosecutor, the Attorney General and the Marion County Public Safety Director, the very people involved in the issue of the division of the civil forfeiture proceeds at the trial and appellate level.

Despite the fact that the Commission's allegation was blatantly false, the Commission attorney's continued to make that allegation.  In its order, the Indiana Supreme Court summarily disposed of the claim, pointing out I had no cases before the judges and it was not an ex parte communication.  That was great, but why was I required to for over a year defend myself against this blatantly false claim?  Additionally, why was the Commission's attorney allowed to continually make the false statement that I had sent an "ex parte" letter.

Also, at various times the Commission has claimed I filed "dilatory" motions.  Of course "dilatory" means a baseless motion designed to seek a delay in the proceedings and I had not sought such a delay.  It was on its face a blatantly false accusation.  The fact it was false didn't stop the Commission's attorney from making the claim in court filings.

But it gets worse.  I have filed to have the Supreme Court reconsider its order that I pay 1/2 of the expenses of my prosecution in light of the Commission needless running up the expense bill to the tune of more than $20,000,.  (Yes the Commission spent more than $20,000 in expenses prosecuting me for the email and civil forfeiture letter.)  The Commission had refused to enter into a stipulation of facts, for example, which would have eliminated the need for the 11 1/2 hour hearing that was held for which I'm now obligated to pay half the expense.  How did the Commission's attorney respond?  Once again with deliberate factual misrepresentations to the Indiana Supreme Court.

The Commission represented to the court that I knew all about the Disciplinary Commission's was conducting an investigation relating to the allegations made in the grievances.    That is completely false.  After filing my formal response to the grievances filed by Executive Secretary Michael Witte in early-mid 2011, and receiving an acknowledgement of that response, I was never once contacted again by the Commission again.  Nor were any of my witnesses I provided ever contacted.  I never heard one word from the Commission or had anything to suggest an investigation was being conducted.    In the Spring of 2013, I met with a top official in the Governor Pence administration, seeking in particular a position where I would be a legal watchdog of the state's retirement accounts, that the Commission rushed forward to file charges against me.  The timing could have been a coincidence but then again if it quacks like a duck...  But to suggest to the Court that I knew all about the Commission investigating the matter, could not be more false.  To this day, I doubt there ever was an actual investigation conducted before the charges were filed.

In the recent court filing, the Commission's attorney claims that the Commission asked for a settlement meeting with me and that meeting lasted three hours.  No such request for a settlement meeting ever happened.  I was deposed by the Commission, following which we had a brief conversation about settlement.   The Commission's attorney knew this but he apparently had no problem making a deliberate misrepresent the deposition as a meeting on settlement to the Indiana Supreme Court.

In the Court filing the Commission's said my proposed resolution of the case as a public reprimand was rejected by the Commission.  Again, that is false.  The Commission never even acknowledged I had made settlement offer. The Commission's attorney also reports to the Supreme Court that I refused to admit any rule violation in conjunction with my offer of a public reprimand.  Again, that is completely false.  Such a concession IS IN WRITING in the formal settlement offer tendered to the Disciplinary Commission. Yet this Commission's attorney, despite that written documentation, felt it was perfectly okay to lie to the justices of the Indiana Supreme Court about the settlement offer.

I have been an attorney for 25 years.  Never have I even considered the possibility of making flat out false factual allegations in court filings much less to the Indiana Supreme Court.   To the credit of most of my colleagues, I've rarely seen attorneys who were willing to violate not only ethical rules but than infamous Rule 11 by filing false statements of fact.  Yet during my prosecution I've had to constantly deal with a Commission attorney who is more than willing to make false and misleading factual statements to the Indiana Supreme Court if doing so advances the Commission's prosecution of its leading critic.

I would point to the "lack of candor" rule that makes what the Commission's attorney is doing a violation of the Indiana Rules of Professional Conduct:

Rule 3.3. Candor Toward the Tribunal

(a)    A lawyer shall not knowingly:

(1)    make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 

(2)    fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or      

(3)    offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Again I ask, are Indiana Supreme Court Disciplinary Commission attorneys exempt from that rule when filing documents with the Indiana Supreme Court?