Tuesday, July 29, 2014

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.

4 comments:

  1. Paul, I will leave it to far more skilled & knowledgeable minds to defend the rules governing the Commission, but there's a legal & logical problem with a claim of "retaliation" against you. There's no guarantee that the Commission had actual knowledge of the would-be client's consent. Just because you indicated that she had "no problem" with the article doesn't mean consent is ipso facto proven. Furthermore, there's no proof that the investigation that led to this prosecution began only AFTER the 06/16/2014 opinion in your last case; there can be no retaliation if it started befor the Commission knew what the outcome of the prior case would be.

    Since consent is a defense to your alleged actions - & indeed perhaps the would-be client welcomed media attention to her plight - then it would seem that you may have a defense to the supposed grievance. The Commission, though, (to my knowledge, anyway) isn't tasked with providing a defense to an allegation any more than cops are required to establish an alibi for a suspect in a crime.

    I'm not passing judgment on the validity or invalidity of the Commission's actions but do want to point out some deficiencies I see in your post. If I'm incorrect in any of my arguments, then let me know.

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