Thursday, June 19, 2014

Indiana Disciiplinary Commission Needs ELECTED Board Members and More Transparency

Since my case was handed down two days ago, I've been praised by my fellow attorneys for standing up to the Commission, for making public how the agency operates and the tactics that it engages in.  Those attorneys often share with me their horror stories of how they were treated by the Commission and how it has hurt them, sometimes destroyed them, professional and financially.   It's sad. The legal profession deserves better.

I am a student of government.  I have worked in every branch of government, been involved in politics, and taught political science, i.e. government,  at the college level for more than 20 years.  There is an ironclad rule of government operations that says if an agency is allowed to operate without meaningful oversight or without transparency, the agency will inevitably begin abusing the power it has been given.  Some would call it corruption.  Over the years, we have seen that with regard to the Internal Revenue Service and the National Security Agency. 

The Indiana Disciplinary Commission operates with no real oversight by the members of the Indiana Bar (the members of the Commission are appointed by the Indiana Supreme Court) and its operations are shielded from any meaningful review by secrecy rules the Commission jealously defends.  Of course, the confidentiality rules are supposed to be about protecting attorneys who might be wrongfully accused of misconduct.  They were never intended to protect the Commission from its own misconduct.

Thus, the Commission operates: 1) in secrecy; and 2) without meaningful oversight.  Is there really any surprise that we're seeing problems with the Commission abusing its powers?  We should EXPECT those abuses considering how the Disciplinary Commission is set up and is allowed to operate.

It is clear that the appointed members of the Disciplinary Commission have done absolutely nothing to curb the poor priorities and misguided disciplinary prosecutions of the current Executive Secretary Michael Witte or his predecessor, Donald Lundberg.  While attorneys all over the state are doing unethical things that hurt people (like stealing money from trust accounts), the Commission has devoted enormous resources to go after attorneys for minor alleged violations that have nothing to do with unethical behavior that hurts people who come into contact with the legal system.  Further, and more disturbingly, the Commission appears to be engaging in politics in the charges it files and how their "investigations" are carried forward.  The tip off to the fact that this is going on is that attorneys are terrified of publicly criticizing the Commission because they know in the past the Commission has retaliated against anyone who challenges its authority.

The Indiana Supreme Court needs to let the Indiana bar pick the members of the Disciplinary Commission.  You can bet the first election under such a system will involve campaigns by reformers who want to end the abuses and misguided priorities of the Commission.

We also need much more transparency about the operations of the Commission.  The agency shouldn't be able to use confidentiality rules designed to protect attorneys to instead shield any sort of meaningful review of how it operates.

I hope the Indiana Supreme Court has an appreciation for the enormous power of the Commission and how it has in the past abused its power to destroy attorneys personal and professional lives.  Defending oneself against allegations of misconduct by the Commission can cost tens if not hundreds of thousands of dollars in attorney's fees and lost business.   It can permanently damage one's career.  Yet there are no rules governing how the Commission conducts its investigations or how long it can keep grievances hanging over attorney's heads. Although the term "due process" governs the operations of our legal system, when it comes to attorney discipline there is no such thing as due process.

I know that first hand.  I had a ONE SENTENCE grievance filed against me by the Commission, a claim that I had lied in a grievance I had filed four years earlier involving the conduct of a magistrate.  The Commission was never made to produce any evidence in support of that ONE SENTENCE claim and yet it was allowed to hang over my professional career for at least 14 years by the Commission's own admission. Actually the Commission never bothered to tell me the grievance filed in 1994 was dismissed in 2008, until 2013.

Just recently I was prosecuted on a count involving sending an "ex parte" letter to Marion County judges about the process they are supposed to be following when dividing up the money at the end of a civil forfeiture proceeding.  The Commission knew darn well that it was not "ex parte" and that it was not a violation of the rules. Yet the Commission was allowed to zealously prosecute this bogus charge and I had absolutely no right to seek summary dismissal of it.  The Indiana Supreme Court agreed that what I did was not a violation of the rules.  Then why was I forced to spend so much time and money to defend myself against the charge?  And why aren't their consequences for the Commission pursuing a completely meritless charge?

To conclude, the Indiana Bar needs an ELECTED Disciplinary Commission and the Supreme Court needs to rewrite the rules so that there are much, much more transparency in the operations of the Commission.

Wednesday, June 18, 2014

The Indiana Supreme Court Hands Down Decision; Why My Case Points to the Need for Reform of the Disciplinary Process

The decision on my disciplinary case was released yesterday.  Overall, it was a good decision for yours truly.  The Indiana Supreme Court soundly rejected the Commission's request and the Hearing Officer's recommendation that I be suspended for a year without automatic readmission, the latter of which would have made the suspension much longer and quite ending my legal career altogether.  Instead the Court decided the case only merited a 30 day suspension with automatic reinstatement.

Getting to the specifics of the case, the Court divided my comments in the email criticizing the judge up into four categories and found that only the one in which I made the factual mistake of stating that the judge I criticized presided over the opening of the estate unsupervised without bond, when it was in fact the case was opened by another judge who briefly had the case some two years before I became involved.  In the other categories of speech the Court found the comments were constitutionally protected or I had a reasonable basis for making the statements.

Then on the second charge, that I had improperly tried to influence judges via an ex parte communication, a letter I sent to Marion County judges about the process they are supposed to be following when distributing civil forfeiture proceeds,  the Court found there was no violation, even noting that the letter, which the Commission continually claimed was ex parte, was sent to the prosecutor, the Attorney General, and the public safety director, all parties involved in the issue of how the civil forfeiture money gets divvied up at the trial and appellate level.

So if you're keeping score at home, I won on 4 of the 5 points of law, 80% of the case.

The good news on attorney free speech is that the Indiana Supreme Court appear to recognize that statements of opinion are not covered by Rule 8.2.    On the other hand, the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.  Also, the Court fell short of the apparent position taken by the United States Supreme Court that attorney speech can only be curtailed when it directly affects the administration of justice in a pending case and that disciplinary rules can't otherwise be used to limit attorney free speech, including speech critical of judges. 

Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges.  I think it's inevitable that's going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.

Back to my case, one of the things the Court found as an aggravating factor is that I was "obstreperous" with the Commission.  I had to look the word up to confirm the meaning.  According to one on-line dictionary, the word means " resisting control or restraint in a difficult manner; unruly."Certainly I did resist what the Commission was doing to me.  The logical conclusion from the Court's decision is that the case was overcharged and overprosecuted.  But I wish the Court would take a closer look at how the Commission conducts itself in these cases and the extremely poor priorities of Executive Director Michael Witte that had led to enormous resources being devoted to cases like this while neglecting to even do an investigation when attorneys such as William Conour are accused by clients of stealing money.    If the Court takes a closer look at what happened in my case, I think the it will find conduct by the Commission to be totally out of line:
  • Shortly after writing an article critical of the Commission, Executive Secretary Witte began filing grievances against me, including based on a letter from a judge that had sat dormant in his office for months.
  • The Commission made no effort to talk to me or any of my witnesses during the supposed investigation of the grievances.  In fact, there is no evidence that there was ever an investigation ever done during the grievance procedure.
  • Two years later, and with no action whatsoever on the grievances, I met with Governor Pence's right hand man and discussing a key watchdog position at the public employee retirement commission.  Then I was suddenly hit by charges filed by the Commission which effectively knocked me out of consideration for any job in the Pence administration.  Once again, there had been no investigation or attempt to talk to witnesses before the Commission filed the grievance.
  • The Commission spent enormous time and resources to put together a very lengthy charging complaint against me as if I committed the most serious ethical violations.
  • The Commission filed Count II against me in which the Commission falsely characterized my civil forfeiture letter as an "ex parte" communication.  Despite my repeated plea that it wasn't ex parte and it wasn't a violation of the rules, the Commission refused to drop the charge causing me to spend time and resources to defend against the allegation. The Indiana Supreme Court found that it was not a violation.
  • During these proceedings, the Commission steadfastly refused any effort to resolve matters with a settlement.  It was clear that Executive Secretary Michael Witte wanted my law license taken away and he was going to devote as much resources as needed to accomplish that.
  • Rather than enter into a stipulation of facts as 90% of the facts in the case were undisputed, the Commission insisted on what turned out to be an 11 1/2 hour hearing, inconveniencing numerous people, including two sitting judges.
  • During the 11 1/2 hearing, the room was filled with scores of Disciplinary Commission, a testament to the importance the Commission placed on taking away my license.
  • Throughout my prosecution, it was clear that the Commission was being motivated by my criticism of the Commission.  This came out explicitly when in some of the filings, the Commission asked for a more severe punishment because I had been publicly critical of the Commission.
The way the Commission conducted itself in this case, and the way that it conducts itself in other cases, is worthy of an investigation by the Indiana Supreme Court.  Hopefully my case will be a catalyst for such an investigation and for much-needed reform to the attorney disciplinary process.