Friday, July 11, 2014

Do Disciplinary Commisson Attorneys Have An Obligation to Be Honest With the Indiana Supreme Court?

Since the Disciplinary Commission in Indiana is an arm of the Indiana Supreme Court are its attorneys, who are Supreme Court employees, exempt from ethical rules when filing documents with the Supreme Court?

I ask that because throughout my more than year long ordeal with the Disciplinary Commission's over-the-top prosecution of me for criticizing a judge in a private email and sending a letter to judges explaining the law that's supposed to be followed when divvying up civil forfeiture assets, I have had to deal with a Commission attorney - actually an attorney who was acting Executive Secretary of the Commission between the terms of Donald Lundberg and Michael Wittte - who has been  more than willing to make knowingly false representations to the Indiana Supreme Court, sometimes in the form of intentionally omitting information and other times simply lying to the Court.

It began with the Commission in filing formal charges against me claiming I had engaged in "ex parte communication" with Marion County judges by sending the civil forfeiture letter.    Of course the letter I sent was not ex parte, which the Commission knew.  I had copied the letter to the prosecutor, the Attorney General and the Marion County Public Safety Director, the very people involved in the issue of the division of the civil forfeiture proceeds at the trial and appellate level.

Despite the fact that the Commission's allegation was blatantly false, the Commission attorney's continued to make that allegation.  In its order, the Indiana Supreme Court summarily disposed of the claim, pointing out I had no cases before the judges and it was not an ex parte communication.  That was great, but why was I required to for over a year defend myself against this blatantly false claim?  Additionally, why was the Commission's attorney allowed to continually make the false statement that I had sent an "ex parte" letter.

Also, at various times the Commission has claimed I filed "dilatory" motions.  Of course "dilatory" means a baseless motion designed to seek a delay in the proceedings and I had not sought such a delay.  It was on its face a blatantly false accusation.  The fact it was false didn't stop the Commission's attorney from making the claim in court filings.

But it gets worse.  I have filed to have the Supreme Court reconsider its order that I pay 1/2 of the expenses of my prosecution in light of the Commission needless running up the expense bill to the tune of more than $20,000,.  (Yes the Commission spent more than $20,000 in expenses prosecuting me for the email and civil forfeiture letter.)  The Commission had refused to enter into a stipulation of facts, for example, which would have eliminated the need for the 11 1/2 hour hearing that was held for which I'm now obligated to pay half the expense.  How did the Commission's attorney respond?  Once again with deliberate factual misrepresentations to the Indiana Supreme Court.

The Commission represented to the court that I knew all about the Disciplinary Commission's was conducting an investigation relating to the allegations made in the grievances.    That is completely false.  After filing my formal response to the grievances filed by Executive Secretary Michael Witte in early-mid 2011, and receiving an acknowledgement of that response, I was never once contacted again by the Commission again.  Nor were any of my witnesses I provided ever contacted.  I never heard one word from the Commission or had anything to suggest an investigation was being conducted.    In the Spring of 2013, I met with a top official in the Governor Pence administration, seeking in particular a position where I would be a legal watchdog of the state's retirement accounts, that the Commission rushed forward to file charges against me.  The timing could have been a coincidence but then again if it quacks like a duck...  But to suggest to the Court that I knew all about the Commission investigating the matter, could not be more false.  To this day, I doubt there ever was an actual investigation conducted before the charges were filed.

In the recent court filing, the Commission's attorney claims that the Commission asked for a settlement meeting with me and that meeting lasted three hours.  No such request for a settlement meeting ever happened.  I was deposed by the Commission, following which we had a brief conversation about settlement.   The Commission's attorney knew this but he apparently had no problem making a deliberate misrepresent the deposition as a meeting on settlement to the Indiana Supreme Court.

In the Court filing the Commission's said my proposed resolution of the case as a public reprimand was rejected by the Commission.  Again, that is false.  The Commission never even acknowledged I had made settlement offer. The Commission's attorney also reports to the Supreme Court that I refused to admit any rule violation in conjunction with my offer of a public reprimand.  Again, that is completely false.  Such a concession IS IN WRITING in the formal settlement offer tendered to the Disciplinary Commission. Yet this Commission's attorney, despite that written documentation, felt it was perfectly okay to lie to the justices of the Indiana Supreme Court about the settlement offer.

I have been an attorney for 25 years.  Never have I even considered the possibility of making flat out false factual allegations in court filings much less to the Indiana Supreme Court.   To the credit of most of my colleagues, I've rarely seen attorneys who were willing to violate not only ethical rules but than infamous Rule 11 by filing false statements of fact.  Yet during my prosecution I've had to constantly deal with a Commission attorney who is more than willing to make false and misleading factual statements to the Indiana Supreme Court if doing so advances the Commission's prosecution of its leading critic.

I would point to the "lack of candor" rule that makes what the Commission's attorney is doing a violation of the Indiana Rules of Professional Conduct:
Rule 3.3. Candor Toward the Tribunal
(a)    A lawyer shall not knowingly:
(1)    make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 
(2)    fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or      
(3)    offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Again I ask, are Indiana Supreme Court Disciplinary Commission attorneys exempt from that rule when filing documents with the Indiana Supreme Court?


  1. Two more questions arise on the same topic:

    1/ Who will prosecute this disciplinary violation? The Committee itself, against itself? That's a joke. That joke is happening in New York, for example, where the disciplinary Committee of Appellate Division 3rd Department reviews and rejects complaints against its own attorney members and attorneys representing the Committee. No apparent mechanisms of disqualification exist in such cases, and the Committee would not disqualify itself in such situations despite an apparent per se disqualification. Wouldn't anyone want to be able to review and reject disciplinary complaints against themselves? Therefore - if you want to violate attorney disciplinary rules, go work for the authorities disciplining attorneys, then you are above the law. And therefore, the claimed protection of the public as a reason for attorney regulation in the first place is a joke, too.

    2/ If the Committee is "the arm of the court", how can disciplinary proceedings be legitimately called "court proceedings". If a party to the proceedings is part of the court presiding over the same proceedings, this situation clearly is in violation of the so-called "judge-advocate rule" and should, in my humble opinion, subject both the party, the party's attorney and the presiding judge to discipline.

    In other words, the structure of proceedings where the prosecutor is "part of the court" or "an arm of the court", as it is frequently said about attorney disciplinary committees appears to be illegitimate in itself, as are any decisions coming out of it.

    1. This is exactly right. The state supreme courts naturally favor their administrative arm. The only judicial opinion I've ever seen where this was recognized by anyone, however, is Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 ['adjudication may require a controversy between two parties other than the body making the adjudicative decision.”]