Liberty's First Crisis Book Review; Striking Similarities Between the Sedition Act and Attorney Discipline for Judicial Criticism

Earlier this month, the Indiana Supreme Court disciplined yet another attorney for writing critically of a judge.  This comes as state supreme courts and disciplinary bodies across the country continue to ignore the First Amendment and the public figure actual malice requirements of New York Times v. Sullivan in order to use professional rules to target members of the bar who dare criticize judges. 

The notion that the law allows for special protection for judges more so than other public officials actually originated in Indiana with the 1979 Matter of Lendall B. Terry case which I wrote about before.  Spelled out in more detail in subsequent cases that piggybacked on Terry is the notion that the allowing attorney criticism hurts the public by undermining confidence in the judiciary.

That argument should sound familiar to students of history.  It is EXACTLY the same argument used by the Federalists in support of the 1799 Sedition Act that led to criminal prosecutions for critics of federal officials, including Federalist President John Adams.

A newly-released book, "Liberty's First Crisis: Adams, Jefferson and the Misfits Who Saved Free Speech," written by Charles Slack details the arguments for the adoption and enforcement of the Sedition Act, passed by the Federalist-dominated Congress in 1798 and signed by Federalist President John Adams.  The Sedition Act made it a crime to "write, print, utter, or publish . . . any false, scandalous and malicious writing" with respect to the United States and federal officials, including the President and members of Congress.  Vice President Thomas Jefferson, a Democratic-Republican who strongly opposed the Sedition Act, was excluded from the Sedition Act's protections.

Slack outlines the Federalists' claim that the Act was needed to protect the reputation of federal officials and prevent criticism from the undermining the actions of United States government.  The Democratic-Republicans in Congress argued that Sedition Act was contrary to the First Amendment Free Speech Clause and that it would be used to stifle critics.  Federalist congressmen countered that the First Amendment only protected prior restraint on speech and that it did not shield speakers from the consequences for their speech.  Federalists argued that if someone was going to criticize the federal government and its officials, they would not be punished if they could prove their statements to be true.

Slack then turns to detailing the criminal prosecutions that took place under the Sedition Act.  Sedition defendants included nearly a dozen critics, including a drunk who joked about wishing President Adams would get shot through the ass and Vermont congressman Matthew Lyon who opined that the President's "unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice."

Most of the prosecutions involved defendants who had expressed critical opinions instead of factual assertions.  (Hyperbole was also apparently a concept not known then or prosecutors simply didn't care.)  Federalist prosecutors wanting to make a name for themselves leveled charges against government critics which culminated with show trials conducted by Federalist judges.  Hapless defendants were not allowed to challenge the constitutionality of the Sedition Law  (The prosecutions predated judicial review being adopted in the 1803 case Marbury v. Madison.)  The issue before the jury was generally only whether the critical statement was made.  In most prosecutions, the issue of whether the statement was false was a judicial determination and the Federalist judges appointed by Washington and Adams always found that the criticism was "false."

The Federalists' argument for the Sedition Act and how it was applied to pursue critics are very well-known to me.  As an attorney, I am intimately familiar with Disciplinary Rule 8.2 which punishes attorneys for untruthful criticism of judges.  While Federalists argue that the Sedition Act is needed to prevent criticisms to cause people to lose faith in the actions of the federal government, state supreme courts declare that Rule 8.2 is needed to prevent attorney criticism from causing people to lose faith in the judiciary.  Like the Sedition Act prosecutions, Rule 8.2 attorney discipline prosecutions inevitable devolve into punishing attorneys for the expression of opinions about judges.  As my research into Rule 8.2 prosecutions shows, 98% of the time state supreme courts find the attorney criticism or opinion about the judge is "false" and punish the attorney speaker.  In some states, they even put the burden on the attorney to prove the criticism is true.

Slack's book about the Sedition Act concludes with a discussion of free speech around the world and the history of other assaults on Free Speech, including the Sedition Act of 1918, passed during World War I, and the current assault on politically incorrect speech on college campuses.  I would highly recommend it.

American Bar Association Task Force Fails to Offer More than Marginal Reform of Law Schools, Legal Profession

The Indianapolis Business Journal last week published an excellent article last week regarding students turning away from law school and the challenges faced by those who do graduate and enter the legal profession.  This week former Indiana Supreme Court Chief Justice Randall T. Shepard pens a response that IBJ editors headlined as "Legal profession racing to navigate through storm." 

Former Indiana Chief Justice
Randall T. Shepard

Justice Shepard is chair of the Task Force on the Future of Legal Education, an American Bar Association created committee charged with the responsibility of assessing how the schools and the profession should move forward in light of the declining interest in legal education and the challenges faced by those who

Recently the Task Force issued a document entitled "Navigating Through a Storm."  In his letter, Chief Justice highlights some of those reforms contained in that report:

We’ve suggested actions that law schools, the accreditors, bar associations and courts could take to make law school and legal services more accessible and less expensive. Broadly speaking, we’ve suggested reordering financial aid, lighter regulation of law schools to foster ingenuity in curriculum, further movement toward practical education, and alternative legal education and licensing.

There are many people with their shoulder to the wheel on such reforms. Notre Dame’s courses for law students on informatics and Indiana University’s McKinney School’s one-year master’s program are excellent examples. The New York courts have changed their bar exam schedule to give law graduates a faster start into the job market, and the Washington Supreme Court has created a program for limited practice by people with shorter and inexpensive specialized education.

With all due respect to Justice Shepard,, all these ABA task form reforms do is suggest marginal changes around the edges of the legal profession. They are slight improvements at best. Off the top of my head, I can name four reforms that are much needed:

First, the ABA ought to insist that people considering law school be provided with honest statistics on what salaries and employment is within the legal profession. Instead law schools have been for years providing inflated numbers to induce people to go to law school, promoting ridiculous average first year associate salaries far from reality of $35,000 a year salaries with no benefits or new attorneys who are put on commission only...if they're lucky enough to get a job.  Unfortunately there is no meaningful audit of the employment numbers claimed by law schools.  They have been lying about those numbers for years, competing with other schools as to which could lie the most. I remember when I attempted to look into the claims and our local law school refused to provide even redacted survey responses to support their employment statistics. They did admit, however, that they "estimated" first year salaries for people not returning their surveys. I'm sure those estimates were very inflated.

Second, the ABA ought to be aggressively opposing the entry of new law schools to educate people for a profession that is grossly oversaturated. Example, the ABA and the Indiana State Bar Association has been missing in action when it comes to the establishment of Indiana Tech as this state's fifth law school. Many of the students at that school will be incurring a lifetime of debt for education in a field where there are few jobs. A recent study found that Indiana is the 7th worst state in the country for legal jobs, with 3 attorneys for every 1 open legal opening.

Third, the ABA ought to work with states on the enforcement of restrictions on non-lawyers practicing law. There are thousands of legal compliance jobs in the securities, mortgage and banking industries. These people offer advice about the law, develop written policies on legal compliance, and even attend hearings with people who are charged with violations of the law. These industries almost uniformly do not hire attorneys for these positions even though the people in those positions are clearly practicing law. While I'm not generally for barriers to entry, we in the legal profession were promised that only those who graduated from law school and passed the bar would be allowed to practice law. Yet we have plenty of non-lawyers practicing law in the aforementioned fields.

Finally, if the ABA is truly worried about student loan debt, the organization ought to be working to make student loan debt treated in bankruptcy just like any other unsecured debt. The fact is many of these law school graduates have taken on six figure debt because they were duped by false promises of entering a high paying profession. It would even the playing field if they were more easily allowed to discharge that debt in bankruptcy.

Those are meaningful reforms that truly would help the profession.  Unfortunately the ABA, like the Indiana Bar Association, has never been about anything more than protecting the status quo and the elite of the legal profession.

Indiana Disciplinary Commission Waits Nearly A Year Before Notifying Attorney Ogden of Grievance Filed by (Now) Disciplined Muncie Judge

Former Judge Dianna Bennington

Today I opened my mailbox to find a nice thick envelope from the Indiana Supreme Court Disciplinary Commission.  It was notification the Commission that now former Muncie City Judge Dianna Bennington had filed a Rule 8.2 grievance against me for two blog articles I wrote critical (here and here) and comments I had made on a newspaper website criticizing her mishandling of a contempt case involving Curtis Westbrook.  The envelope contained not only the brief letter from DC Executive Secretary Witte but copies of my blog and comments made in conjunction with the story.

Bennington subsequently was charged with 13 counts of misconduct filed by the Judicial Qualifications Commission based upon her handling of the Westbrook contempt and other cases as well as a domestic disturbance she was involved in.  Bennington recently agreed to a lifetime ban on serving as a judge in settlement of the charges.

Bennington filed her grievance against me on February 25, 2014.  In the nearly one year time since then, Witte and the Commission provided me with zero notice that a grievance had been filed against me. 

That is in keeping with the manner in which the Disciplinary Commission operates.  Former Executive Secretary Lundberg maintained a grievance against me for at least 14 years, filed against me in 1994, never informing me that the grievance had (supposedly) been dismissed in 2008.  (Despite my request for the information, the Commission has provided no proof whatsoever that it was dismissed in 2008 as claimed by the Commission.)  That grievance involved supposedly false information I had submitted with a grievance I had filed back in 1990 against a Marion County magistrate.  When, in 1994, I indicated to Gov. Bayh officials that I wanted to talk to investigators about the magistrate, Lundberg within days filed a one sentence grievance saying I had provided false information with the 1990 grievance.  I took it as an attempt to stop me from talking to investigators and to discredit what I had claimed in the 1990 grievance.

Not once in 14 years did Lundberg ever identify what I supposedly lied about or provided me with the first shred of evidence in support of his allegation.  In response, I suggested he submit the matter to the Marion County Prosecutor for a perjury prosecution if I lied.  He did.  I met with the grand jury investigator who was baffled that Lundberg had sent over the allegation against me but had no given them no evidence whatsoever in support of his one sentence allegation.  Needless to say, Lundberg's phony accusation was not even deemed worthy of submitting to a grand jury.  Years later, the magistrate was up for another judicial opening.  Within a week or so of a story appearing in the Indianapolis Star about the opening, Lundberg sent me a certified letter saying the several year dormant grievance was being docketed for investigation, which I took as another attempt by the Executive Secretary to silence and discredit me should I talk to investigators.  In the entire time, at least 14 years that the grievance pended, the Commission did no investigation.

My experience is not alone.  Court of Appeals Judge Buchanan, with whom I clerked, had a grievance pending against him for years that went nowhere.  (Judge Buchanan, along with Justice Pivarnik, had been an opponent of the appointment to the Court of Randall Shepherd, who later, as Chief Justice, exercised tremendous authority over the Disciplinary Commission that maintained the grievance against Buchanan.)  The other day, I learned of a grievance that was pending multiple years against a prominent attorney only to apparently be dismissed with the aid of Barnes & Thornburg, the law firm which many say exercises undue influence over the Disciplinary Commission. 


Michael Witte

Indeed I strongly suspect that that Barnes & Thornburg was behind my disciplinary charges.  It was only when I interviewed for a job with the Pence administration and had applied for an attorney/watchdog position with the formerly named Public Employee Retirement Fund (PERF), with which B&T's clients are very involved, that formal charges were rushed forward by the Disciplinary Commission based on never investigated grievances Witte had filed against me (after I had criticized the Commission on my blog), grievances which had sat dormant for two years.  The DC in my case made no attempt to contact me or my witnesses before filing charges.  I would add that a Barnes & Thornburg partner, against whom I had filed a grievance against and was shortly thereafter appointed to the DC, also apparently sat in on votes to file the grievance and charges against me.

Let's face It, the Indiana Supreme Court Disciplinary Commission operates as a star chamber, working under a cloak of secrecy with virtually no oversight.  Grievances should not be allowed to pend for years; baseless charges filed by the DC should be subject to summary dismissal.  Both Lundberg and Witte abused their power, with the latter now using the immense authority of the Disciplinary Commission to go after public critics and settle old scores.

The time is long past for Chief Justice Rush and the Indiana Supreme Court to order an independent investigation of the Disciplinary Commission, to conduct an audit of the secret grievance files maintained against attorneys, and reform the rules so that there is more transparency and evenhandedness in the handling of disciplinary cases.  The attorney disciplinary process in Indiana should focus first and foremost on protecting the public from dishonest attorneys, and certainly never be used to protect the Disciplinary Commission and its Executive Secretary from being exposed and criticized for their own misconduct in enforcing the rules.