Friday, May 9, 2014

Hearing Officer Criticizes Indiana Disciplinary Commission for its Handling of Advertising Disciplinary Case

The Indiana Lawyer has an excellent article about the poor proprietorial decisions of the Indiana Supreme Court Disciplinary Commission when it came to a recent advertising disciplinary case:
A recent Indiana attorney disciplinary order quickly gained the notice of the ABA Journal and legal blogs, prompting some analysts to predict the ruling would have a chilling effect on lawyers here and around the country. But the case also involved pursuit
of discipline that a court-appointed hearing officer called “disconcerting.

The Indiana Supreme Court’s April 11 opinion, In the Matter of: Anonymous,
Crown Point Attorney Tim Kelly
45S00-1301-DI-33, concluded a protracted attorney discipline case with a private reprimand. The lawyer was found to have made misleading communications regarding legal services offered in testimonials, and he failed to include his office address on a promotional item.
Let me stop there.  Once the Disciplinary Commission files charges, they are public, and any reasonable hope of an actual "private reprimand" is extinguished.  It didn't take much effort on the part of Indiana Lawyer writer Dave Stafford to figure out who the attorney is.

The article continues:
But the offending testimonials weren’t on the attorney’s website. They appeared on the website for Law Tigers, a network of the American Association of Motorcycle Injury Lawyers that the lawyer subscribed to. Additionally, the promotional item that lacked an address did conform with advertising rules at the time it was produced. After a rule change added a requirement that office addresses appear on advertising, the lawyer acknowledged the change escaped his notice. Once aware of the rule change, he added his address to Law Tigers promotional items that he passed out at biker events, according to the record.

A cursory review of the case reveals that anonymous is Tim Kelly, a longtime Crown Point personal injury attorney. A closer examination of the record suggests Indiana Supreme Court Disciplinary Commission attorneys went too far and employed tactics in prosecuting the case against Kelly that may have violated Rules of Professional Conduct.  (My emphasis.)

“My father practiced law in Indiana for 30-plus years and never had a disciplinary issue. I’ve practiced law for almost 42 years and this is the only discipline issue I’ve ever had,” Kelly said. “I’ve worked extremely hard to be ethical, honest, successful and recognized as a good lawyer. … It is really devastating that something like this resulted in me being disciplined.”

The Supreme Court disciplinary order makes no mention of problems with the commission’s investigation. But Lake Superior Magistrate Michael Pagano, who presided as hearing officer, concluded his sometimes-blistering report to the court by writing that he initially believed the commission “overreached.”
When questioned about the propriety of the prosecution, Disciplinary Commission Executive Secretary Michael Witte passed the buck to staff attorney Frederick Rice in order to speak for the Commission:
 Rice downplayed Pagano’s criticism of the commission’s prosecution of Kelly’s case. “The Supreme Court certainly did not address those issues in their opinion,” Rice said. “I doubt they put a lot of importance on that, I don’t know.”
Indiana Disciplinary Commission
Executive Secretary Michael Witte
What is remarkable is that Kelly went to extraordinary lengths to make sure he was following the rules and yet the Disciplinary Commission zealously prosecuted him anyway:
Before signing with Law Tigers, Kelly sought an opinion from the Disciplinary Commission, which it declined to provide, according to the record. He also sought an opinion from the state bar and consulted with nationally recognized attorney Lynda Shely, outside ethics counsel to AAMIL and a longtime director of lawyer ethics for the State Bar of Arizona.

“Quite frankly, it appears to Mr. Kelly that the Commission’s attempt to use him as a test case amounts to a due process violation because the Rules of Professional Conduct certainly do not make it clear that participation in (Law Tigers’) group advertising is a violation of the Rules,” Mulvaney argued in a brief to the court.

Pagano saw abuses and irregularities, too.

“The commission was well aware of (Kelly’s) due diligence,” Pagano wrote. “In fact, following receipt of his submission, the commission sent (Kelly) a letter informing him it would not be pursuing charges against him. The commission, for reasons unclear, then reversed itself and proceeded with the instant matter.”

Pagano noted in his findings that Rice had difficulty articulating a proposed sanction when asked, ultimately saying, “… that’s not the important part of this. The discipline is not the important part. It’s a determination of what the rules require and what they say.”

“(T)he idea that (Kelly) should be used as a mere instrument to re-write an exceptionally unsettled area of law troubles me deeply, especially in light of the great lengths (Kelly) went to in ascertaining whether his participation in AAMIL would cause him disciplinary grief,” Pagano wrote.
Other questions need to be asked. How much did the Kelly prosecution cost in terms of time and money?   How much did Kelly have to pay to defend himself?  How much did it hurt his career while the charges were pending?  Those are real consequences from the Commission's ill-advised, zealous prosecution of Kelly that need to be considered by the Court.

It's just a hunch but I believe there is substantial dissatisfaction with Executive Secretary Witte's leadership of the Commission.  I'd be surprised if his tenure is not near the end.  If the Court appoints new leadership of the Disciplinary Commission, it needs to insist that the new Executive Secretary reset the Commissions' priorities so they are focused on protecting he public from unethical attorneys and not spending enormous resources on pursuing attorneys for minor alleged rules violations..  The Court also needs to do a thorough investigation of the Disciplinary Commission's grievance and charging practices, providing attorneys with anonymity as they will certainly be fearful that the Commission will retaliate against anyone who publicly criticizes the Commission, a fact I know all too well.  There also needs to be much more transparency on Commission activities.  It is a law of government bureaucracy that when agencies are allowed to operate in secrecy, the result at the very least is bureaucratic misconduct.  The confidentiality rules governing the Commission are designed to protect attorneys not protect the Commission and its employees from their own misconduct which in this case may have violated the very disciplinary rules the Commission is supposed to enforce.

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