Saturday, February 22, 2014

National Moot Court Competition Takes on Issue of Disciplining an Attorney for Private Email Criticizing a Judge

The Indiana University School of Law at Indianapolis(sorry but I refuse to call my alma mater  the "Robert McKinney School of Law") is hosting a national professional responsibility moot court competition in March.
The Indiana University Robert H. McKinney School of Law Moot Court Board is pleased to announce that the 3rd Annual National Professional Responsibility Moot Court Competition will be held on March 14-15, 2014, in Indianapolis, Indiana.

This two-day competition is open to all ABA-accredited law schools throughout the United States and will focus on a question of professional responsibility.

Legal and judicial ethics, professional regulation, professionalism, and client protection
pertain to every practitioner, no matter what legal field.  The National Professional Responsibility Moot Court Competition will offer students an outstanding opportunity to engage in advocacy on cutting edge professional responsibility concerns.  The moot will test skills in appellate brief writing and oral advocacy on two specific issues drawn from real opinions, providing experience in interpreting professional responsibility standards and scholarly resources first hand.

Oral arguments will begin on Friday, March 14 and conclude on Saturday, March 15.  Rounds of the competition will mainly take place at Inlow Hall, 530 W. New York St., Indianapolis, IN, 46202, and at other appropriate venues in Indianapolis.
The problem set for this year includes tackling the ethical issues related to Rule 8.2, the disciplinary rule used most often to sanction attorneys for criticizing judges.  The issues involve whether Rule 8.2 applies to private speech, whether to use the objective or subjective (actual malice per NY Times v. Sullivan) standard, and the application of the First Amendment to the speech.

A decision by the fictitious "Illiani Board of Professional Responsibility Hearing Panel" sets the stage for the Illiani Supreme Court oral arguments.  Here is the portion dealing with the issues relating to Rule 8.2:
In the e-mail to [Client] Shirley, [Attorney] Riker stated that Judge Picard was “very conservative” in employment cases, biased in the way that he views evidence and is “an old codger who hates greedy plaintiffs.” At first glance it seems that these statements are innocuous observations by a lawyer to his client. When viewed in context, however, the statements are anything but innocuous. Riker, in giving advice to his client, made statements implying that Picard was in some way influenced by his political ideology, partial in the way he weighs evidence, and biased  against plaintiffs. These are exactly the types of statements that the State has a strong interest in preventing from being made as they imply that a judge is in some way prejudiced, which ultimately affects the administration of justice.   As an officer of the court, Riker had a duty to uphold its reputation and not imply that its judicial officers are prejudiced against those who come before it seeking relief. We find that in  light of Riker’s professional duties, a reasonable attorney in his shoes would not have made such a critical statement about a judicial officer

Riker argues that because his statements were made in a private setting and not a public forum, he should not be subject to discipline for his statement about Judge Picard. Riker relies on Matter of Isaac, a decision in which the court found that the attorney was not subject to discipline because his criticisms were made outside of the court. 76 A.D.3d 48, 51 (N.Y. 2010).  We find this reasoning unpersuasive. Even though it is clear that an attorney’s speech can be severely limited in an actual courtroom, even outside the courtroom, an attorney’s speech is subject to restrictions that a normal citizen’s speech would not be.   In Re Sawyer, 360 U.S. 622 (1959). As the Court noted, sometimes ethical duties require certain abstentions even when not acting in a professional capacity.  Id. at 646. Given a lawyer’s important role in the administration of justice, we find this reasoning more persuasive.
Finally, Riker argues that his speech is protected by the First Amendment to the Constitution. Riker is correct when he argues that the Constitution does guarantee protections of certain types of speech. We disagree, however, that his statements about Judge Picard are protected under the First Amendment.  In determining which test to apply to determine whether his speech is protected by the First Amendment, we look to other jurisdictions. Some jurisdictions think that no standard test exists and have simply decided to weigh the competing interests at stake.In re Wilkins, 777 N.E.2d 714, 717 (2002) (“it is our belief that a generalized test cannot be drawn. Each prohibition, circumscribed by the factual setting present in a particular case, must be examined in light of the affected State interest and measured against the limitation placed on the freedom of expression.”).   Other jurisdictions have analyzed whether the statement was mostly fact vs. opinion and whether the substance of the statement contained “objectively verifiable matters.” Berry v. Schmitt, 688 F.3d 290, 303 (6th  Cir. 2012).
We agree with the approach that the Wilkins court used. The State must balance its interests in preserving the integrity of the judicial system with an individual’s right to freedom of speech. We find that in this instance the State has a strong interest in preserving an impartial judiciary. As members of the bar, attorneys are held to a higher standard of propriety which requires them speak in a way that promotes justice. Sawyer, 360 U.S. at 646. At times this requires that an attorney refrain from speaking, even if in other instances the speech may be protected by the First Amendment. Id. at 646-47. In addition, if Riker had a valid concern about Judge Picard’s actions on the bench, he should have filed a complaint with the Judicial Conduct Disciplinary Commission, the appropriate place to raise such concerns, instead of expressing his concerns to his client.

We find that the state’s interest in accomplishing justice outweighs any interest Riker has in protecting his free speech. After a thorough review of the facts and Riker’s arguments, we find that Riker violated Rule 8.2 and is hereby suspended from the practice of law for ninety days.
 Well, those facts certainly look familiar.  They even hit on the issue that too often gets overlooked in my case whether private speech criticizing a judge is even covered by Rule 8.2.  The commentary that follows Rule 8.2 indicates it is about protecting the "public's confidence in the administration of justice."

The students will also be wrestling with the issue of an attorney contacting, indirectly, a represented client in violation of Disciplinary Rule 4.2.

Wednesday, February 19, 2014

Study Shows Nearly One Quarter of Attorneys Licensed in 2000 Are No Longer Practicing Law

Jennifer Nelson of the Indiana Lawyer has an interesting article on a study on the status of the legal profession.  Researchers from After the JD, a project of the American Bar Association, has been tracking a national sample of attorneys who were licensed in 2000.  By 2003, 14.7% were not practicing law. By 2012, that figure had risen to 24.1%.

The After the JD survey linked in the Nelson story included this tidbit:
On a 1-to-5 scale, the 2012 respondents on average rated their satisfaction with their decision to become a lawyer at 3.92. When asked whether they considered law school a good career investment, on a 1-to-7 scale, the average response was 5.55. Finally, when asked whether they would go to law school if they had it to do over again, on a 1-to-7 scale, the average response was 4.91.
My guess is that many of those 2000 licensed attorneys believe that their legal education will be useful in other areas. What most will eventually find out is that their legal background will more often than not limit career choices by over-qualifying the attorney for many non-lawyer positions.

A final point is that while this is a national survey, Indiana is even worse than average.  In a 2011 study, Indiana ranked as the seventh worst job market for attorneys with 3.03 law school grads for every one legal job.  And that is before Indiana Tech came on line as the state's fifth law school to add to the glut of unemployed attorneys.

Tuesday, February 18, 2014

Mother Shot at Day Care Had Filed to Remove Her Case From "Lazy Judge"; Claimed Judge Retaliated Against Her

The weekend before last, I was contacted by a potential client, Shirley (Talia) Justice,  who wanted to do a Rule 53.1 lazy judge praecipe (often erroneously called a "motion") to remove Marion County Judge Patrick McCarty from her case.  She had had a modification of custody hearing in November,  Nearly three months had passed and there was no ruling.  I told her because of Judge McCarty's role in trying to get me disciplined for sending out a letter attempting to educate Marion County judges on what procedure they were supposed to follow at the close of a civil forfeiture case (a determination of law enforcement costs with the balance going to the Common School Fund), I could not represent her.

The first thing on Monday, February 10, 2014, Ms. Justice filed, pro se, a Rule 53.1 lazy judge praecipe to remove Judge McCarty.  The role of the Clerk's employee, who is embedded in the judge's office, is ministerial only - verify that there had been no ruling since the motion was filed or hearing held and that over 30 days had passed.  If those facts are present on the docket, the clerk certifies it to the state court administrator to order the judge removed and a special judge appointed.

Instead of following that procedure, someone in the office tipped off the judge who put together an order that was entered on the docket ahead of the lazy judge praecipe.  In March of 2009, Ms. Justice had been awarded primary physical custody of her child with legal custody being shared.  This newly entered order though drastically changed the custody situation.  Father was awarded sole legal and physical custody of the minor child and the mother was denied any additional parenting time.  The entry from the docket is below:
Order Modifying Custody, Parenting Time and Child Support: Father shall have sole legal and physical custody of [minor child.]. Specific parenting time set out in the Order; Mother shall not have the opportunity for additional parenting time. Mother shall have no overnight parenting time. Mother shall not allow any male to be present during her parenting time, except at public places. Kathy Thornton (paternal grandmother) shall serve as temporary custodian in the event of incapacity or death of Father. Mother to pay $127 per week in support effective Nov 8, 2013. Father to provide health insurance; Father to pay 1st $568 of uninsured expenses and any remaining expenses split 50-50. Father may claim child for tax purposes. Mother to pay $1,454 in attorney fees or it may be reduced to judgment. Copies of order mailed. 
Ms. Justice contacted me and complained about her lazy judge praecipe being "denied" and Judge McCarty's order that she felt was retaliatory.  She again asked me to represent her but I told her I couldn't.  I instead told her to notify the State Court Administrator and let them know what happened.  To the credit of the people in that office, the case was removed from Judge McCarty:

Order Received from the Indiana Supreme Court
Accordingly, submission of this case is withdrawn from JUDGE Patrick L. McCarty effective as of the 8.20 a,m. February 10, 2014. This matter will be submitted to the Indiana Supreme Court for appointment of a special Judge or such other action deemed appropriate by the the Court. In accordance with Ind. Trial Rule 53.1(E) you must enter this determination in the Chronological Case Summary of the case and notify, in writing. the judge and all parties of record in the proceeding.    
Order Signed:  02/13/2014
The last contact from Ms. Justice came last Friday when she asked me the effect of the Supreme Court's action.  I told her it wasn't clear, but it should be that the order entered by Judge McCarty is vacated.  The Supreme Court's order, however, didn't address that issue.

Unfortunately the story doesn't have a happy ending.  USA Today reports:A woman was in critical condition Tuesday after she was shot multiple times in the parking lot of a day care center, according to police.
None of the 17 children at the Eagle View KinderCare Learning Center were injured.   
The victim, Shirley Justice, 31, was able to tell police that her ex-husband, Christopher Justice, 33, was the person who shot her.   
Police are looking for Christopher Justice, described as a black male about 6' 1" and weighing 180 pounds. He is believed to be driving a black Ford Fusion with an "In God We Trust" license plate.   
Initial reports indicated Shirley Justice sustained multiple gunshot wounds in her chest area, but was talking to medics while in en route to the hospital at 7:45 a.m.   
The shooting occurred about 7:20 a.m. at the center located in a business and commercial area. The victim was found on the ground in the parking lot by a center manager, police said.

Monday, February 17, 2014

Suspension Without Automatic Readmission = Much Lengthier Suspension and Effective Disbarrment for Most Attorneys

Marcia Oddi of The Indiana Law Blog last week published an excellent article on what the real effect is of the Indiana Supreme Court increasingly common ]practice of imposing "suspension without automatic readmission" (SWAR)onto an attorney's punishment.  When SWAR is tacked onto the end of a suspension it generally gets little attention.  Instead the focus is on the length of the suspension.   Clearly after reading Oddi's article, it is clear that SWAR should get a lot more attention.

The Indiana Law Blog article reports on research done by Craig Smith, an Indiana attorney doing a federal clerkships in Texas.  According to Smith, one effect of SWAR is a much lengthier suspension.  Even if an attorney given SWAR reapplies, it takes 8-16 months to go through the process and be readmitted.  Thus an attorney who receives let's say a one month suspension with SWAR, the attorney will actually be suspended for at least 9 months possibly as long as 1 1/2 years. While a 1 month suspension may not sidetrack an attorney's career or cause him to lose a job with a law firm, it is very likely that a nine month or 1 1/2 year suspension would.

But that is for the SWAR attorneys who reapply.  While attorneys who do reapply generally make it through the process, most don't even attempt it.  Instead most attorneys who receive SWAR simply walk away from the practice of law.  According to Smith's research, of the 119 attorneys who received SWAR since 2000, only 22 (18.5%) have been reinstated.  68 of the 119 simply walked away without even trying to get their licenses back.  It says something about the value of a law license today that so many people simply leave the practice rather than invest the time and effort to go through the SWAR process.

Thanks to Marci Oddi for publishing this important research.  My guess is the Indiana Supreme Court has never studied the actual impact of imposing SWAR on the attorneys they discipline.

Disclaimer:  In my case in which the Commission is asking that I be suspended for a year for criticizing a judge in private emails, the Commission is also asking for SWAR.   The Hearing Officer has recommended the same.  As I've said previously, I realize if I receive SWAR, that is effectively disbarment and I'll have no choice but to walk away from the practice of law.  The statistics produced by Craig Smith have confirmed that belief.

Saturday, February 15, 2014

Muncie City Judge Apparently Found Man Guilty of Contempt and Sentenced Him Without His Even Being Present

As a follow-up to my story about Muncie City Judge Dianna Bennington who gave a man, Curtis Westbrook, a 10 day sentence for passing a letter criticizing that the judge claimed disrupted her courtroom, the Muncie Star this morning suggests that Westbrook might have been found guilty and sentenced to 10 days in jail without his even being present or a hearing being held:
..the 55-year-old [Curtis] Westbrook -- who on Tuesday was arrested and began serving a 10-day jail term imposed by Bennington after she found him in contempt of court -- maintained City Court was not in session when he entered the auditorium on either Monday or Tuesday.

Westbrook also insisted he had never encountered the judge on either day.

A City Court document created on Tuesday reflects Bennington a day earlier had found Westbrook "guilty of direct contempt of court by creating confusion that disturbed the business and proceedings of the court by distributing a letter to undermine the authority of the court and to provide legal advice to defendants in the courtroom."


When he returned to the court on Tuesday -- this time to attend a hearing in his son's case, not to pass out letters -- Westbrook said baliff [sic] Hahn passed on a warning from the judge.

According to Westbrook, he was told if he entered the auditorium and sat down, "and she comes in, and the court opens up, you're going to be arrested for contempt of court. Because you're disrupting the court. You're giving advice."

Westbrook said he entered the courtroom to chat briefly with his son -- again, before the judge took the bench and began the day's proceedings -- but purposely did not sit down.

According to Westbrook's account, he then left the auditorium and briefly visited another office in City Hall. When he then returned to the building's main lobby, near the entrance to the auditorium, he was taken into custody by several city police officers and Hahn, and informed he had been found in contempt of court.

Westbrook said he was not told how long he was to remain in jail, learning of his 10-day sentence only when he read an article in Thursday's edition of The Star Press.
As I have noted in my previous article on the subject, Judge Bennington clearly doesn't understand the difference between civil and criminal contempt. Civil contempt is remedial in measure and could have been used to stop Mr. Westbrook from passing out the letter in the auditorium/courtroom and to even confine him if necessary to keep him from disrupting court proceedings.  But that's it.  By proceeding to "sentence" him for his conduct, Judge Bennington crossed the line into criminal contempt.  If Judge Bennington wanted Westbrook prosecuted, and sentenced to jail, she should have sworn out a complaint to the Delaware County Prosecutor and let the Prosecutor decide whether to file criminal contempt charges.  If the charges are filed, Westbrook would have been brought before a judge (most certainly not Judge Bennington who could well be a witness in the case) and advised of his rights, including the right to a public defender if he can't afford an attorney, the right to present evidence and cross-examine witnesses, etc.

I received a copy of the chronological case summary relating to Mr. Westbrook's contempt. The action is styled Muncie City Court v. Curtis Westbrook and given a miscellaneous civil cause number.  The entry does not indicate that Mr. Westbrook was ever brought before the court or a hearing held.  Mr. Westbrook may not have been provided even summary due process before Judge Bennington imposed a 10 day sentence.  That would be a problem.  Last time I checked, both the United States and Indiana Constitutions require due process of law before someone is deprived of his or her liberty.

While Judge Bennington has immunity from being sued for Mr. Westbrook's almost certainly illegal incarceration, the City of Muncie and the Delaware County Sheriff don't enjoy that same level of immunity.  She also has handed her political opponents an issue to make the claim she lacks the temperament and judgment to be a judge.

Thursday, February 13, 2014

Muncie City Judge Has Man Jailed for Passing Out Letter Criticizing Her

It is a story that might get national attention as an example of an abuse of judicial authority.  The Muncie Star-Press reports:
A critic of Muncie City Court Judge Dianna Bennington is in the Delaware County jail after being found guilty of contempt of court.

Curtis L. Westbrook, 55, was arrested Tuesday, a day after the contempt finding.

Curtis Westbrook
According to a document provided to The Star Press by a court employee, Westbrook was sentenced to 10 days in jail Monday after the judge ruled he was "creating confusion that disturbed the business and proceedings of the court by distributing a letter to undermine the authority of the court and to provide legal advice to defendants in the courtroom."


Westbrook in recent weeks has distributed a letter calling the judge -- who was elected to the bench in 2011 -- "One-Term Bennington" and referring to her "fiasco judgeship."

A member of Westbrook's family was charged in Muncie City Court with domestic battery in January 2013.

Curtis Westbrook has maintained his family member, and others, have not been informed in advance that City Court trials are bench trials, with Judge Bennington, rather than a jury, deciding a defendant's guilt or innocence. Cases of City Court defendants seeking jury trials are transferred into the Delaware Circuit Court system.

The letter distributed by Curtis Westbrook -- and dropped off recently at The Star Press -- calls the process by which City Court cases are transferred a "well-kept secret." He also maintains Bennington and others have a financial motivation to "keep the City Court litigants in the dark concerning their right to a jury trial," and suggests defendants could file misconduct complaints against the judge and attorneys involved in their prosecution.

"Finally, remember this come election time!" the Muncie man concludes.

According to Delaware County jail records, Westbrook is scheduled to be released at 8 a.m. Feb. 21.
Judge Bennington clearly doesn't understand the difference between criminal and civil contempt. The Court of Appeals in Mitchell v. Stevenson, 677 NE 2d 551, 560 (Ind. App. 1997) explains the difference: 
A civil contempt s a violation of a court order resulting in a proceeding for the benefit of the aggrieved party. As such, any type of penalty in a civil contempt proceeding must be coercive or remedial in nature. In contrast, a criminal contempt is an act directed against the authority of the court which obstructs the administration of justice and which tends to bring the court into disrepute.  Thus, any type of penalty is punitive in nature because its purpose is to vindicate the authority of the court and it benefits the State rather than the aggrieved party. 
Certainly Judge Bennington has the right to, if necessary, take Westbrook into custody to protect her courtroom from being disrupted.  That is a remedial measure for civil contempt.   But the fact is Westbrook had already left the courtroom. He was taken into custody when he came back.  Judge Bennington wanted Westbrook punished for his previous conduct in interfering with her courtroom.  That is clearly criminal, not civil, contempt.

Because the allegation constituted criminal contempt, such charges must be brought in the name of the State of Indiana by the prosecutor.  In that proceeding, Westbrook should have been afforded all the protections that go to criminal defendants, including the right to a public defender if Westbrook could not afford an attorney.  Further, the impropriety of Judge Bennington sitting in judgment of a harsh critic of hers is frankly off the charts.

The bottom line is that Judge Bennington appeared to very offended by Westbrook's public criticism and exercised extremely poor judgment in trying to silence her critic. The irony is that while Mr. Westbrook's letter criticizing Judge Bennington would have had little effect on her political prospects for re-election, the judge's abuse of her authority has created a much bigger issue that is more likely to cause her to lose re-election.

Judge Bennington would be well advised to seek legal counsel who I am sure will advise her: 1) to admit she made a mistake; and 2) to release Mr. Westbrook from jail...immediately.   An apology to Mr. Westbrook would also be in order but I won't get my hopes up.

Wednesday, February 12, 2014

Are Indiana Judges Backdating Orders to Avoid Lazy Judge Violations?; Attorneys Who Dare Report Judges For Rule 53.1 Violations Risk Losing Their Licenses

Over the weekend, I heard from a person who wanted to file a Trial Rule 53.1 lazy judge notice. (While it's often called a "motion" that is a misnomer.  The judge has no right to rule on it.)  Rule 53.1 says that if 30 days has passed since the filing of a motion or a hearing, and the judge has not ruled, a party can file to have the case removed from the judge.  The county clerk's only role is determining if 30 days has passed. Then it gets certified to the State Court Administrator.  Upon receipt of the certification, the Supreme Court orders the judge withdrawn from the case and appoints a special judge to take over.  Judges hate lazy judge notices because it acts almost as a disciplinary action, requiring them to explain to the Supreme Court why they screwed up.

I checked the docket on Saturday.  Indeed about 90 days had passed since the hearing on a child support/visitation modification petition.   The judge had not ruled.  I, however, declined the representation in part because of my previous experience filing a lazy judge motion against Judge David Coleman and later having Judge Coleman suggest to the Commission I violated a disciplinary rule because of my criticism of his handling of the estate case in private emails.

Anyway the person filed the lazy judge notice pro se on Monday.  She then reported to me that she was told the judge had signed an order on the case on Friday which was entered on the docket on Monday ahead of her lazy judge notice.   The clerk refused to certify the lazy judge notice to the state court administrator.

I strongly suspect that that particular judge backdated the order  and had that motion (which was faxed to the court) entered on the docket after his order was entered.  In fact, this is not the first time I have heard this particular judge had backdated orders when faced with a lazy judge notice.

I would assume that backdating an order to avoid a Rule 53.1 rule violation is a very serious ethical offense.  But here's the thing.  Any attorney who attempts to report that judge for backdating the order, faces a Rule 8.2 charge for impugning the integrity of the judge.  At that point, the Commission will demand that the charged attorney produce direct, smoking gun evidence of the backdating.  If the attorney was not in the room when the judge backdated the order, there is no way the attorney can produce that evidence.  As I learned in my disciplinary proceeding, circumstantial evidence doesn't count for anything.  Only direct evidence counts.

Don't think for a second that reporting judicial misconduct through "official channels" will protect you from getting targeted for a disciplinary violation under Rule 8.2 or other rules. My review of cases across the country indicate attorneys are all the time accused by disciplinary bodies of misconduct for reporting judicial misconduct to the proper authorities.  In fact, it happened to me here in Indiana.

How many judges around the state are backdating orders when they are accused of lazy judge violations?   How many attorneys have declined to accuse judges of backdating orders or a Rule 53.1 violation for fear of facing a Rule 8.2 disciplinary charge filed by the Indiana Disciplinary Commission.  My research shows that Indiana is the number one state in the country when it comes to disciplining attorneys for Rule 8.2 charges involving judicial criticism.  How is the public served by the chilling effect on attorneys' speech accusing judges of wrongdoing?  Yet that - protecting the public - is always the reason cited for aggressively targeting attorneys for speech critical of judges.  Indeed the public is not being protected when attorney speech is chilled.

Monday, February 10, 2014

Scott Storms Disciplinary Case Shows Misplaced Priorities of the Indiana Disciplinary Commission

Whenever Executive Secretary of the Indiana Disciplinary Commission Michael Witte is questioned by reporters about why the Commission has not taken disciplinary action, his response is almost always the same, i.e. that the Commission lacks financial resources and manpower.   But that response raises another issue regarding the poor priorities that Witte and the Commission members have when it comes to disciplining attorneys in this state.  The No. 1 priority of the Commission should be enforcing the disciplinary rules to protect the public from harm.   Yet it is clear in example after example that the Commission's priorities have been placed elsewhere.
Michael Witte, Executive Secretary,
Indiana Disciplinary Commission

The most recent example is the Scott Storms disciplinary case. The Indiana Lawyer reports:
A former administrative law judge with the Indiana Utility Regulatory Commission has been reprimanded by the Indiana Supreme Court, which ruled this week that a harsher sanction was unwarranted because he’d already been punished enough for seeking a job with Duke Energy while making rulings concerning the utility.


Duke hired Storms then fired him when accusations of ethical breaches arose. Ethics complaints clouded IURC decisions after the allegations came to light and resulted in criminal charges against former IURC director Thomas Lott Hardy. Former Gov. Mitch Daniels fired Hardy after the revelations.

Hardy was charged with a Class D felony count of official misconduct that was dismissed last year, but the state has sought to appeal that decision. Hardy was accused of lobbying Duke to hire Storms and having an ex parte communication with the company about its Edwardsport power plant in 2010.


 Justices ruled Storms violated Profession Rule of Conduct 1.11(d), which generally prohibits a lawyer serving as a public employee from negotiating for private employment with anyone “involved as a party or as lawyer for a party in a matter in which the lawyer is participating.”

In the unanimous order, Chief Justice Brent Dickson wrote for the court that discipline might have been more severe had the Disciplinary Commission not agreed to the reprimand.
Let's summarize.  An administrative law judge, presiding over state regulatory cases  in which Duke Energy was a party, was at the same time soliciting employment from Duke. Is that a conflict of interest?  Could the public have been harmed by Storms' actions? Yes, in fact millions of Hoosiers could have been harmed.  Yet the Disciplinary Commission agreed to a mere public reprimand, which
Catherine Nestrick, Chair,
Indiana Disciplinary Comssion
the Supreme Court somewhat reluctantly went along with because Storms had already been fined $12,000 and barred from state employment, which of course he was trying to leave.

Witte and the Disciplinary Commission's approach to this type of case in which the public is harmed is not unusual.  Two attorneys, Paul Page and David Wyser both received felony convictions, the former for being involved in a real estate scheme and the latter for bribery.  Witte allowed them to continue practicing law for months before filing charges.  I'm sure Page especially was grateful for the time given to him to wrap up his practice and earn considerably more money.

Then you have the case of William Conour who for years had been dipping into his trust account for his own use.  Despite several people filing grievances about the problem, Witte took absoltleyno steps to charge Conour letting the harm to the public to continue...for years.  It took the FBI stepping in and having Conour criminally charged and securing a plea deal before Witte would file charges.

Then you have the matter of Carl Brizzi.  The U.S. Attorney's office declined to file criminal charges against the former Marion County Prosecutor but according to the Indiana Lawyer:
"[i]n a statement, Hogsett described Brizzi's actions—accepting $25,000 in campaign contributions from the father of a woman (Paula Willoughby) who was seeking a modification to a murder sentence and arranging a lenient plea bargain for a business partner's client (Joseph Mobareki)—as "unacceptable" and vowed to seek to have Brizzi's law license rescinded." 
To date, the Commission has not taken action against Brizzi's license.  Likewise, the Commission took no action against an Indiana attorney who was found to have failed to report over a million in legal income and in another matter Witte said that an attorney keeping over a $10,000 legal fees he explicitly was not entitled to under the legal services contract was simply a "fee dispute" that did not involve a matter of ethics.  Of course, that doesn't stop the Commission from regularly pursuing other attorneys on claims they didn't earn their fees.

On the other side, the Commission had no problem spending enormous resources to go after Attorneys Thomas Dixon of Osceola and David Wemhoff of South Bend because they alleged in a recusal motion that a trial judge was biased against their clients and should recuse herself.  Likewise, the Commission aggressively pursed a long-time Morgan County attorney Joseph Barker who wrote a letter which was filed by opposing counsel with the court in which Barker called the opposing party was "an illegal immigrant." While the charge against Dixon failed at the Supreme Court level, which resulted in the charge against Wemhoff which was similar also failing, Barker, a 45 year attorney with no disciplinary record, received a 30 day suspension.  In all these cases, the Disciplinary Commission was willing to devote enormous resources to going after attorneys when there was little if any harm to the public caused by their actions.  Al these attorneys had to deal with having their reputations tarnished by the Commission, the tremendous lost time in dealing with the charges, and the substantial expense of defending themselves from the charges. 

Then of course you have my case, a charge over private emails I sent to opposing counsel and case participants in which I criticized a county judge's mishandling of an estate case. Supposedly my private emails caused "serious injury" to the public, the judicial system and the legal profession.  Of course, I didn't make my criticism of the judge public - Executtive Secretary Michael Witte and the Disciplinary Commission did that when they filed the charges against me.   It has been clear from my prosecution that Witte will spare no expense in making sure I lose my law license.  (I certainly didn't get a Scott Storm type offer from the Commission.)   During my 11 1/2 hearing, I counted no fewer than 6 and possibly as many as 8 DC staffers who were present.  Besides the salaries of all the people from the Commission who have worked on my case, you have the $100 an hour charge for the hearing officer to prepare numerous orders in my case and and issue his 85 page report.  I wouldn't be surprised if the Commission has spent $30,000 or more prosecuting me.   Meanwhile, I'm asked to simply accept it as just a "coincidence" the curious timing of Witte filing two grievances against me shortly after I wrote publicly criticizing the Commission's practice of targeting small firm attorneys and sole practitioners and asking for the Supreme Court to investigate the operations of the Commission. 

In the end, it comes down to priorities.  Executive Secretary Witte and the Disciplinary Commission members have clearly not made protecting the public a priority when it comes to their enforcement of the disciplinary rules.  I would again ask that the Indiana Supreme Court conduct a thorough an independent investigation of the Disciplinary Commission's practices, an investigation in which  attorneys have their confidentiality protected because of the quite real fear they have of retaliation should they dare to say anything publicly critical of the Commission.

Below is the list of Commission members.  While I know many times these individuals are probably just rubber-stamping Witte's recommendations (though we'll never know since the Commission operates in secrecy), these folks should still be held accountable for failing to make sure that the No. 1 priority of enforcing the disciplinary rules is to protect the public. 

Catherine A. Nestrick, Chair
Berry Plastics Corporation

William Anthony Walker, Vice Chair
Attorney at Law

Nancy L. Cross, Secretary
Cross, Pennamped, Woolsey & Glazier, P.C.

Andrielle M. Metzel, Treasurer
Benesch, Friedlander, Coplan & Aronoff LLP

Maureen Grinsfelder
Fort Wayne

Trent A. McCain
McCain & White, PC

R. Anthony Prather
Barnes & Thornburg LLP

Leanna K. Weissmann
Attorney at Law

Kirk White

Staff Contact
G. Michael Witte, Executive Secretary
Charles M. Kidd, Deputy Executive Secretary
30 S. Meridian St., Suite 850
Indianapolis, IN 46204
(317) 232.1807

Tuesday, February 4, 2014

Commentary to Model Rule Limiting Attorney Criticism of Judges Shows Rule Being Misinterpreted and Misapplied by State Disciplinary Bodies

Rule 8.2 is the disciplinary rule of choice for sanctioning attorneys who criticize judges.  It is the rule being used to prosecute me for criticizing Hendricks County Superior Court Judge David Coleman in private emails I sent to an attorney and case participants.  In the emails, I said Judge Coleman had failed to follow probate rules and that he should be investigated for how he handled the case.  What has not gotten much publicity is that prior to Judge Coleman complaining to the Disciplinary Commission regarding me, I had Coleman removed from the case by the Indiana Supreme Court due to a "lazy judge" notice I filed.

I would like to think I'm alone in being a victim of the overzealous application of Rule 8.2.  However, since my situation became public I have heard from attorneys all over the country how they too are being disciplined for criticizing judges.   An attorney in Utah was actually jailed for three days and publicly reprimanded for criticizing a judge in a motion to withdraw.  A Tennessee attorney wrote an email to a judge complaining about comments the judge had made to the media after a case they had been involved in was over.  He now faces Rule 8.2 charges.  A South Carolina attorney is charged with violating Rule 8.2 for comments he made about a judge on Twitter.  The list is endless.

Let's take a look at Rule 8.2:
(a)    A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
Almost every state supreme court and disciplinary body has rejected Rule 8.2 as employing the New York Times v. Sullivan actual malice libel standard for public officials, an exception to the Free Speech Clause which requires that the speaker has knowledge of the falsity of his statements about a public official.  Instead state supreme courts have applied Rule 8.2 in such a way as to shift the burden of proving criticism of judges is true to the attorney speaker, even requiring the attorney to often prove that critical opinions are true.  The supposed justification for such an approach limiting,even chilling attorney free speech, is the need to uphold the "public integrity" of the judicial branch.  To students of history, the justification should sound eerily familiar.  It is the exact same argument the Federalists use for justifying the 1798 Alien and Sedition Acts which criminalized false criticism of the executive and legislative officials.

What is interesting is that in none of the published Rule 8.2 cases I have read has a court actually reviewed the commentary and notes to the Model Rule 8.2 was adopted by American Bar Association Commission on Evaluation of Professional Standards to see what was intended. Well, to the credit of my attorney Adam Lenkowsky, he had the foresight to do exactly that.  He went looking for the background on Model Rule 8.2 and found information that completely refutes the approach most states, including Indiana, have been taking as to the application of Rule 8.2.  The rule was intended to apply the NY Times v. Sullivan actual malice standard, was intended to cease attorney prosecutions for "intemperate speech" and for the expression of opinions for the expression of opinions.  Here is the commentary and notes to Rule 8.2 with certain provisions highlighted which contradict how the rule is being applied:
COMMENT: Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender.  Expressing honest and candid opinions on such matters contributes to improving the administration of justice. conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice. When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.


Code Comparison

               With regard to Rule 8.2(a), DR 8-102(A) provides that "A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office,"  DR. 8-103(B) provides that "A lawyer shall not knowingly make false statements against a judge or other adjudicatory officer."

               Rule 8.2(b) is substantially identical to DR 8-102.

Legal Background

             A lawyer's right "as a citizen to [criticize] and attack a candidate for an elective office must be recognized, so long as the right is not abused. That the office is judicial, and that the candidate is there serving as a judge, can make no difference in the basic principle involved….We cannot think that a lawyer's citizen's criticism of such a candidate must [sic] needs to be confined to what is decent and respectful.  His criticism may be as indecent and disrespectful as the facts justify.  The rule governing … such utterances must be that of a qualified privilege…."  Thatcher v. United States, 212 F. 801, 07 (6th Cir. 1914), appeal dismissed, 241 U.S. 644 (1916.)

               Traditional rules governing criticism of courts have been sweeping in scope.  Some courts have justified a broad prohibition on criticism of judicial officers on the need to maintain public confidence in the judicial system.  See, e.g., Justices of Appellate Div. v. Erdman, 40 A.D.2d 521, 333 N.Y.S.2d 862 (1972); In re Raggio, 487 P.2d 499 (1971); Nelles & King, "Contempt by Publication in the United States,"  28 Colum. L. Rev. 401, 525 (1928).  In a number of cases, however, the Supreme Court has rejected attempts to penalize extrajudicial criticism of judicial officers on such grounds.  See, e.g., Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 311 (1946).  Truthful criticism is protected by the First Amendment, subject to regulation only to the extent it presents a clear and imminent threat to the fair administration of justice or involves conduct disruptive of a judicial proceeding.  See Rules 3.5 & 3.6.

               The Supreme Court has held that false statements about public officials may be punished only if the speaker acts with knowledge that the statement is "false or with reckless disregard of whether it is false or not."  New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Garrison v. Louisiana, 379 U.S. 64 (1964).  Rule 8.2 is consistent with that limitation.
  See Note, "In re Erdmann:  What Lawyers Can Say About Judges," 38 Alb. L. Rev. 600, 609-610 (1974) ("Since disciplinary actions against attorneys seem to constitute a serious deterrent to free political discussion, it is arguable that such actions should be subject to the same constitutional limitations as the Supreme Court has imposed in defamation actions.")  Compare Spencer v. Dixon, 290 F. Supp. 531 (W.D. La. 1968); State v. Nelson, 504 P.2d 211 (Kan. 1972); Justices of the Appellate Div. v. Erdmann, 33 N.Y. 559, 560, 301 N.E.2d 426, 427, 347 N.Y.S. 2d 441, 442 (1973)(Burke, J, dissenting).

               Rule 8.2 eliminates the Code's distinctions between "false accusations" and "false statements of fact."  The critical factors in constitutional analysis are the statement's falsity and the individual's knowledge concerning its falsity at the time of the utterance.  See Garrison v. Louisiana, 379 U.S. 64 (1964); Baker v. Monroe County Bar Ass'n, 34 A.D. 2d 229, 311 N.Y.S.2d 70 (1970), aff'd, 28 N.Y.2d 977, 272 N.E.2d 337, 323 N.Y.S.2d, cert. denied, 404 U.S. 915 (1971.)
               Rule 8.2 applies to a statement of fact.  Accord, State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974)(inasmuch as criticism involved opinion, truth or falsity of underlying allegation not in issue); See Justices of Appellate Div. v. Erdmann, 33 N.Y.2d 559, 301 N.E.2d 426, 347 N.Y.S. 2d, 441 (1973).  Compare Rinaldi v. Holt, Rinehart & Winston, Inc. 42 N.Y.2d 369, 366, N.E.2d 1299, 397 N.Y.S. 943 (Fuchsberg J., concurring), cert. denied, 434 U.S. 969 (1977).  Contra, In re Raggio, 487 P.2d 499 (Nev. 1971) (district attorney criticized court's opinion as "shocking and an exercise in "semantical gymnastics."

               Rule 8.2 does not continue the standard of EC 8-6 which stated that a lawyer who criticizes judicial officials "should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism…."  Nor does Rule 8.2 incorporate the statement in EC 8-6 that adjudicatory officials are "entitled to receive the support of the bar against unjust criticism."  Each has been involved to penalize criticism considered to be intemperate in tone.  See e.g., In re Shimek, 288 So.2d 686 (Fla. 1973); In re Frerichs, 238 N.W.2d 764 (Iowa 1976); State v. Nelson, 504 P.2d 211 (Kan. 1972).  But see Polk v. State Bar, 374 F. Supp. 784(N.D. Tex. 1974); Justices of the Appellate Div. v. Erdmann, 39 A.D.2d 223, 333 N.Y.S. 863 (Greenblatt, J., dissenting) (1972), rev'd, 33 N.Y.2d 559, 301 N.E. 2d 426, 347 N.Y.S. 441 (1973).  See also State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974)(court rejected attempted discipline of lawyer under DR 1-102(A)(5) stating that "the only specific limitation on criticism of a judicial officer is set forth in DR 8-102(B)….").  EC 8-6 has also caused some judicial officers to take the view that lawyers have an affirmative duty to defend judges.  See Rinaldi v. Holt, Rinehart & Winston, Inc. 42 N.Y.2d 369, 366, N.E.2d 1299, 397 N.Y.S. 943 (Fuchsberg, J., concurring), cert. denied, 434 U.S. 969 (1977); Palmer, "The Judge:  Maligned, Attacked and Undefended," 55 Chi B. Rec. 21 (1973).

It is clear that the adoption of Rule 8.2 was intended to incorporate the NY Times v. Sullivan standard of actual malice for criticizing public officials and that, under the Rule 8.2 states were supposed to show the attorney had actual knowledge that the statement was false. (For states to go beyond that and impose additional restrictions attorney speech criticizing judges, i.e. public officials beyond the exception allowed by the Supreme Court in NY Times v. Sullivan would violate the First Amendment.)  Further, Rule 8.2 was never intended to apply to statements of opinions which can't be proven true or false.  That the rule was intended to apply only to statements of fact which can readily be proven true or false is consistently ignored by many state disciplinary bodies as they prosecute attorneys for judicial criticism.

Again, credit goes to my attorney Adam Lenkowsky for having the presence of mind to actually go look up the notes and commentary accompanying the adoption of Model Rule 8.2.  Now if state disciplinary bodies will only start reading the background on Rule 8.2 and apply it as intended and in accordance with what the Constitution requires...

Note:  This article first appeared in my other blog, Ogden on Politics, on December 16, 2013.