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.

Is Brewington v. State a Harbinger of a New Era Allowing Judicial Criticism by Attorneys?

A number of attorneys have contacted me recently excited that the Brewington v. State decision handed down last week by the Indiana Supreme Court may signal a new tolerance for attorney criticism of judges.  Although the non-attorney blogger's conviction for intimidation of the judge was upheld, very strong language in the opinion suggests that non-threatening criticism of a judge is constitutionally protected.

Brewington, which was written by new Justice Loretta Rush, begins:

Justice Loretta Rush

The United States and Indiana constitutions afford sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic.

"Intemperate" is an interesting word.  When the American Bar Association in the early 1980s adopted Model Rule 8.2, the rule that governs an attorney's comments regarding judges, judicial candidates and others, the ABA specifically declared that Rule 8.2 was a constitutionally-required actual malice standard and that it was rejecting the previous rule (EC 8-6) that required that a lawyer who criticizes judicial officials "should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism..."  The ABA said that the rule had been misused to "penalize criticism considered intemperate in tone." (Emphasis supplied.)

Dictionaries define "intemperate" to mean "having or showing a lack of self-control," "immoderate," "unreasonable," "lacking self-control."  Despite Model Rule 8.2 and its commentary, states across the country, including Indiana, have used Rule 8.2 to sanction attorneys for "intemperate" criticism of judges while holding that judges, among all other public officials, deserved special protection from criticism by attorneys.  One of those Indiana cases involving an "intemperate" comment involved a tenant's attorney who outside the courtroom referred to the (Marion County) Washington Township Small Claims Court as a "Mickey Mouse Court" because the landlord's attorney appeared to be running the court.

In Brewington, the Indiana Supreme Court drew a line between threats to one's reputation and threats to harm:

Fear for one’s reputation is often the price of being a public figure, or of involvement in public issues. But fear for one’s safety is not.

Here, the Court of Appeals failed to distinguish between those two types of fear. Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations—hyperbolically accusing them of “child abuse” and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional “actual malice” standard for defamatory speech, and the Court of Appeals erred in relying on them to support Defendant’s convictions for intimidating a judge and attempted obstruction of justice.

The very-well written opinion then proceeds to analyze the facts, determining which of Brewington's comments only threaten reputation and those which could be credibly seen as threats of physical harm.  The Court concluded that some of Brewington's comments were constitutionally protected while others an objective viewer would conclude that other comments, considering a totality of the circumstances,  constituted threats of harm.

Brewington though still had a chance to win.  The key part of the Supreme Court appeal turned on the Court's discussion of the instruction on the crime of intimidation which requires a "threat" which is defined by statute as:

“Threat” means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person’s legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.
I.C. § 35-45-2-1(c).

As the Supreme Court, notes, some of those statutory "threats" - such as one saying that a "threat" is exposing a person to hatred, contempt, disgrace, or ridicule" would improperly make criminal constitutionally protected speech  Thus, when the trial court included all the "threats" listed in IC 35-45-2-1(c) in its instruction, the trial court left open the possibility that the jury didn't find Brewington guilty because he physically threatened the judge, which would be unlawful, but because he exposed the judge to "hatred, contempt, disgrace, or ridicule," which would be constitutionally protected speech.

The court disposed of this contentious issue by reviewing the record and concluding that the failure to object to the definition was part of an "all or nothing" strategy of Brewington's defense counsel.  Thus, counsel "invited the error" and thus the alleged error could not be successfully raised on appeal.

The Court began its conclusion with another strong phrase suggesting that criticism of judges will be treated the same as criticism of any other public official:

It is every American’s constitutional right to criticize, even ridicule, judges and other participants in the judicial system—and those targets must bear that burden as the price of free public discourse.

While the language looks indefeasible, I am not yet convinced that the Indiana Supreme Court will conclude at the end of the day that "every American" includes attorneys.  While the U.S. Supreme Court has taken the position that attorneys are no different from other members of the public when it comes to having a First Amendment rights, with the only exception is when an attorney is speaking out about a pending case in such a way as to possibly influence the administration of that case, state supreme courts have ignored those precedents to impose harsh sanctions on attorneys for criticizing judges even without a pending case.  Indiana has led the way in laying the groundwork for those lines of cases.  In the 1979 case, In Re Matter of Terry, the Indiana Supreme Court concluded that shielding judges from attorney criticism protects the public by preserving "a fair, impartial judicial system and the system of justice as it has evolved for generations."  Thus, the Terry Court concluded that, because of this important interest, the First Amendment does not protect attorneyspeech critical of judges, thus cloaking judges with more protection from criticism than every other public official.  Later decisions by the state supreme courts, including Indiana, have continually cited Terry with approval while concluding attorney speech critical of judges is not constitutionally protected.

Is Brewington the dawning of a new era when it comes to courts recognizing the constitutional right of attorneys to criticize judges?  I hope so, but I remain skeptical.

Discipline of "Anonymous" Shows Misplaced Priorities of the Indiana Disciplinary Commission

Last week an Indiana disciplinary case was handed down that demonstrates once again the misplaced priorities of the Disciplinary Commission and its Executive Secretary Michael Witte.  The Indiana Supreme Court decision sets out the facts:

The American Association of Motorcycle Injury Lawyers, Inc. ("AAMIL") is a for-profit Arizona corporation that offers franchise opportunities involving AAMIL's registered trademarks, including "Law Tigers," and other proprietary marks, slogans, and logos

Michael Witte, Executive Secretary
Indiana Disciplinary Commission

(together "trademarks"). AAMIL's business model involves contracting with lawyers and law firms throughout the United States, and granting those lawyers and firms licenses for exclusive use of the Law Tigers name and other trademarks owned by AAMIL within certain geographic areas ("territory") to promote and market the services offered by AAMIL to the public. Under the terms of the license agreements, these "Licensee" lawyers and firms agree to engage in promoting and marketing the Law Tigers as a service to meet the needs of the motorcycle-riding public, including legal advice and/or representation in connection with claims involving the operation of motorcycles.

On March 15, 2010, Respondent and his firm entered into a license agreement with AAMIL to be an exclusive licensee in Indiana for a term of three years. The Law Tigers' toll-free telephone number service was established by AAMIL and operates under its authority. Under the terms of the license agreement, AAMIL was obligated to ensure that all calls to the Law Tigers toll-free telephone number seeking legal assistance from Respondent's territory were automatically routed directly to Respondent.

In addition, the public could contact Law Tigers through AAMIL's Law Tigers internet website. The website contained a wide variety of information for the motorcycle-riding public, including information about lawyers and firms that AAMIL identified as the Law Tigers source of legal services in the various geographic areas of the United States. The website offered a search function that identified Respondent and his firm as the exclusive Law Tigers source for legal services for his territory.

The Law Tigers website contained examples of previous results obtained by "Law Tigers Motorcycle Accident Lawyers," boasting "Exceptional Results: Settlements and Verdicts." A tab led to "Client Testimonials" from persons who claim to have utilized Law Tigers in seeking advice and/or representation regarding a motorcycle-related legal matter. Such testimonials included: "Law Tigers changed my life in a big way and my family received our fair share of justice." "Law Tigers went above and beyond! The settlement was more than expected!" "The legal services were fast and painless and the best experience I have ever had with lawyers and lawsuits." Although none of the settlements, verdicts, or testimonials related to Respondent, the website did not disclose that they did not relate to Respondent.

Respondent also maintained a separate website for his law firm, which could be accessed through a link from the Law Tigers website. The firm website included a statement that the firm was not permitted to include information about previous results from settlements and verdicts. However, a visitor to the Law Tigers website was not required to access the link to the firm website to be put in contact with Respondent and his firm.

Respondent distributed AAMIL-produced informational materials within his territory, including "promotional backers." The promotional backers contained a toll-free telephone number for the Law Tigers service, the Law Tigers website address, and the names of Respondent and his firm. However, the promotional backers did not contain Respondent's address.

The Commission threw the book at the attorney, lodging the charges with:

7.1: Making false or misleading communications regarding services, e.g., statistical data, information based on past performance, testimonials.

7.2(c): Failing to include an office address in a public communication.

7.3(d): Accepting referrals from an unqualified referral service.

7.3(e): Improperly giving something of value for a recommendation.

7.5(a)(4): Use of an improper trade name.

In the end, the Indiana Supreme Court in a 5-0 decision said the allegations lodged by the Commission only merited a private reprimand.  I'm not sure how you can do a "private" reprimand after the Commission had already made the matter public when it charged the Commission.

Catherine Nestrick, Chair
Indiana Disciplinary Commission

It is apparent from the case that the Disciplinary Commission devoted enormous resources to going after "Anonymous" for what at best is a petty violation.  (Of course, the attorney in response also undoubtedly spent tens of thousands of dollars trying to defend himself hiring one of the top disciplinary attorneys in the state.))  The Indiana Supreme Court should look beyond this case and investigate how much time and resources the Commission devoted to pursuing Anonymous.  At the same time Witte declares the Commission lacks the resources to properly investigate attorneys like William Conour who are causing real harm to the public by stealing money from trust funds, he is willing to devote substantial resources to go after attorneys for minor violations.  Witte's poor judgment in charging and prosecuting attorneys even merited an IBJ editorial.

Public resources are finite. When Executive Secretary Witte decides to use the limited resources of the Commission to go after attorneys for petty offenses, that means there are less resources to devote to going after attorneys who commit violations that greatly harm the public.  While Witte undoubtedly deserves the lion's share of the blame, the Disciplinary Commission members listed below who continue to sign off on Witte's poor prosecution decisions should also be held accountable:

Members

Catherine A. Nestrick, Chair
Berry Plastics Corporation
Evansville
 

William Anthony Walker, Vice Chair
Attorney at Law
Gary
 

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

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

Maureen Grinsfelder
Fort Wayne
 

Trent A. McCain
McCain & White, PC
Merrillville
 

R. Anthony Prather
Barnes & Thornburg LLP
Indianapolis
 

Leanna K. Weissmann
Attorney at Law
Lawrenceburg
 

Kirk White
Bloomington
 

Finally, I would note that, although the decision was only a private reprimand, the decision itself may have substantial consequences that have already merited criticism in an article entitled: "An Indiana Ethics Opinion That May Kill Legal Startups."

Thanks to Marcia Oddi, publisher of the Indiana Law Blog, for her fine work in bringing attention to these decisions and the articles that comment on them.

How Many Indiana Attorneys Knew About Misconduct by Schererville Judge And Remained Silent for Fear of Being Disciplined for Reporting?

Last week, the Indiana Supreme Court handed down a decision involving former Schererville judge Deborah A. Riga Gardner.   The Court sets forth the facts of what is strikingly similar, though on a much smaller scale, to the Pennsylvania "Kids for Cash" scandal:

Stipulated Facts: From January 2000 to December 2003, Respondent served as Schererville Town Court Judge, where she heard cases involving traffic, minor drug and alcohol offenses, and small claims.

Driving Classes. In general, defendants charged with first-time traffic offenses could have their prosecution deferred if they took a defensive driving course. From January 2000 until October 2001, the driving courses were offered in Respondent's courtroom one Saturday each month, and each participant was required to pay a $25 fee to the driving school and a $114 fee to the Town of Schererville ("Town"). The driving school paid rent of $250 to the Town for each class held in the courtroom. Profits from the driving school went to the owner of the driving school.

In October 2001, Respondent created her own business called Diversified Educational Services ("DES") which offered the defensive driving courses. Respondent's father contracted with W.S.1 to open a checking account in the name of DES, which Respondent and her father controlled. Respondent directed that the fees collected from defendants that she ordered to attend the driving school be deposited into the DES account. Between November 2001 and December 2003, people attending DES driving school paid fees totaling $29,600. W.S. was shown as the sole owner of the account to conceal Respondent's financial interest in DES. Respondent paid W.S. $3,800 from the DES account for his cooperation. Respondent did not disclose her financial interest in DES to the Town or to defendants charged with traffic offenses in her court.

In December 2001, Respondent stopped paying rent to the Town for DES's use of the courtroom for the driving classes. Between December 2001 and December 2003, DES conducted sixteen driving school classes for which no rent was paid to the Town.

Counseling Program. In general, young adults who were charged in the Schererville Town Court for the first time with minor alcohol or marijuana offenses were ordered by Respondent to participate in a counseling session called "Crossroads." When the defendants completed the counseling and supervision requirements, the case would be dismissed.

From March 2001 through November 2001, the Crossroads counseling sessions were conducted by Addiction and Family Care, Inc. ("AFC"). The people attending the Crossroads sessions were required to pay $80 to AFC. The sessions were offered about once a month on a Saturday in the Schererville Town Court. Respondent required AFC to pay $150 rent per session to the Town for use of the courtroom. The profits from the program went to AFC owner N.F.

In December 2001, Respondent terminated the contract with AFC and assumed ownership of the Crossroads program the following month. Concealing her financial interest in Crossroads, Respondent continued to use the counselor who previously conducted the Crossroads sessions by AFC and continued to issue certificates of completion signed by N.F.

Between January 2002 and December 2003, twelve Crossroads sessions were held for approximately 175 defendants. Approximately $14,320 was collected from these defendants and deposited in Respondent's DES account. Respondent did not pay rent to the Town for the use of her courtroom for any of these Crossroads sessions.

Criminal Conviction. Respondent was charged on August 5, 2004, with several federal crimes based on actions while she served as a town judge. On June 12, 2006, the court accepted Respondent's guilty plea to four counts of "Mail Fraud for the Purpose of Executing a Scheme and Artifice to Defraud, Aiding and Abetting," in violation of 18 U.S.C. §§ 1341 and 1346. The district court delayed the sentencing to allow her to cooperate with the government and testify against another defendant on public corruption charges. On July 10, 2008, the district court sentenced her to concurrent 15-month sentences on each of the four counts, ordered her to pay restitution of $5,770.39 to the Town, and $6,350 to the State of Indiana-Lake County, and dismissed the remaining charges.

Based on these convictions, the Court entered an order of interim suspension on September 4, 2008, which is still in effect. See Matter of Riga, 894 N.E.2d 563 (Ind. 2008).

I would bet anything that attorneys who practice in Schererville knew all about what was happening in the judge's courtroom for almost four years.  Attorneys, because of their position within the legal system, are the primary and often the only individuals in a position to blow the whistle on judicial misconduct.

According to my research, Indiana is the most aggressive state in the country when it comes to sanctioning attorneys under Rule 8.2 for criticizing or accusing judges of misconduct.  Indiana led the way in concluding that attorneys do not have First Amendment rights to criticize judges because the state's interest overrides constitutional protection.  In laying the groundwork for this theory, the Indiana Supreme Court in the case Matter of Terry, 394 N.E.2d 94, 95-96 (1979) stated:

Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations.

 ...

In the present case, the Respondent is charged with making false accusations against a Judge. This prohibition touches the very core of the judicial process. Unwarranted public suggestion by an attorney that a judicial officer is motivated by criminal purposes and considerations does nothing but weaken and erode the public's confidence in an impartial adjudicatory process.

With the groundwork laid in Terry, Indiana has been the most aggressive state in the country when it comes to enforcing Rule 8.2, the rule that purports to limit judicial criticism by attorneys.  But the problem is there is no evidentiary support behind the Terry conclusion - namely that the public is benefited by sharp, and undoubtedly unconstitutional, restrictions on attorneys' criticism of judges through the aggressive enforcement of disciplinary rules.  In Bridges v. California, 314 U.S. 252-270-271 (1941), the United States Supreme Court decades earlier rejected the Terry theory that the public is served by protecting judges from criticism:

For these reasons we are convinced that the judgments below result in a curtailment of expression that cannot be dismissed as insignificant. If they can be justified at all, it must be in terms of some serious substantive evil which they are designed to avert. The substantive evil here sought to be averted has been variously described below. It appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

Although Bridges dealt with the media publishing judicial criticism of a pending case, the notion that limiting attorney speech because attorneys are more likely to be believed by the public on matters relating to the judicial branch was considered and rejected by Justice Kennedy in Gentile v. State Bar of Nevada, 501 US 1030, 1056-1057 (U.S. 1991)

To the extent the press and public rely upon attorneys for information because attorneys are well informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent

The premise that sharp limitations on attorney criticism of judges protects the public is an assumption used to support Rule 8.2 discipline.  However, I have never seen a court anywhere try to actually point to any evidence, direct or circumstantial, that in any way proves the public is served by limiting attorney criticism of judges beyond the limits that apply to any other public official.

To the converse, it is clear that the public is indeed harmed when attorneys are fearful of speaking out against judicial criticism.  Following the Pennsylvania "Kids for Cash" scandal an investigating committee  found that numerous attorneys in Luzerne County knew that two judges there were sentencing juveniles to two private correctional facilities and getting kickbacks.  Yet they remained silent.  As I reported on these pages, the reason is undoubtedly that just a few years earlier, the Pennsylvania Supreme Court suspended two attorneys for five years and disbarred another attorney all for accusing Pennsylvania county judges of misconduct.

How many Indiana attorneys knew about problems in the Schererville court and remained silent?  How many attorneys knew about problems in the Marion County Superior Court run by Judge Kim Brown and remained silent?   The public was harmed by problems that lasted for years longer than they otherwise would have if attorneys would not have been fearful of speaking out. Indiana's chilling of attorney free speech has real consequences that harm the public.

Head of the Indiana Disciplinary Commission Retaliates Against Yours Truly For Helping Person Blow the Whistle on Marion County Judge

Saturday afternoon, I received a knock at my door.  It was my postal carrier.  He come bearing a new grievance filed against me by Executive Secretary Michael Witte of the Indiana Supreme Court Disciplinary Commission.  I wasn't surprised.  I know how the Disciplinary Commission has operated under former Executive Secretary Donald Lundberg and now Witte. The Commission has long ceded as its primary mission enforcing the rules to protect the public from unethical attorneys.  Rather, under Lundberg and Witte the Commission has become a tool to go after critics and other attorneys the Commission doesn't like.  They have been relentless in that goal.  When an attorney who fights  charges escapes the disciplinary process with his license intact, other charges almost inevitably follow.  The Commission will continue until it gets the attorney's license or the attorney gives up and leaves the practice of law.

Michael Witte, Executive Secretary
Indiana Disciplinary Commission

Witte's grievance this time is that I wrote about my interaction with Shirley Justice, the young mother who was shot 14 times outside a day care facility on the northwest side of Indianapolis.  Ms. Justice had contacted me about filing a "lazy judge" praecipe against Judge Patrick McCarty who had pending before him a petition for modification of child custody that was over 90 days.  She pleaded with me to represent her.  I told her I couldn't, but discussed the lazy judge process with her, reviewed the docket, and reviewed the lazy judge praecipe she drafted pro se.

She by fax tried to file the lazy judge praecipe Monday morning.  She then contacted me upset, reporting to me that talked to a clerk in the office and that even though she had faxed it nearly the first thing that morning, an order on her case had been entered ahead of the motion.  Her lazy judge praecipe was deemed moot.  As I indicated to her, that's not the first time I had heard it alleged that Judge McCarty will execute an order for filing ahead of a lazy judge praecipe, thereby mooting the praecipe.   Judges hate lazy judge praecipes because they trigger a disciplinary type process in which the judge has to explain to the Supreme Court why a timely ruling was not made.

What to do?  I reported what happened in Judge McCarty's court to counsel for the Judicial Qualifications Commission and the State Court Administrator.  Apparently they didn't buy it either that the order was done before the praecipe.  The Supreme Court ordered that the praecipe be shown as having been filed first. The case was removed from Justice McCarty's court.

I didn't plan on writing about what happened until Ms. Justice, while outside a day care center dropping off her child, was shot 14 times, allegedly by her ex-husband.

In the grievance, Witte fails to identify any disciplinary rule I violated but suggests from the my article in which I reported what Ms. Justice said and her allegations regarding Judge McCarty improperly revealed confidential information from my discussion with the potential client.

It is not clear by what authority Disciplinary Commission Executive Secretary Michael Witte thinks he has to assert a potential client's confidentiality rights.  It is not clear under by what authority that Witte believes that an attorney can be sanctioned for revealing information that a client had no problem revealing.

I have since talked to Ms. Justice.  I confirmed that Ms. Justice had no problem with my including the information of our discussions in the article and, in fact, approves of what I wrote.  She has also talked to the media.  She wants her story out, including what she believes Judge McCarty did to her.

Before filing a grievance asserting that I had violated Ms. Justice's confidentiality rights, neither Mr. Witte nor anyone at the Commission bothered to talk to Ms. Justice.  This is consistent with the fact that the Commission made no effort to talk to me or any of my witnesses before filing charges based on my sending emails criticizing a Hendricks County judge and my writing a letter educating judges about how civil forfeiture proceeds were to be divided.

One thing is clear though.  What Witte did by filing that new grievance against me is nothing more brute retaliation for my criticizing him and the Commission and, in particular, my doing my job of reporting what happened to Ms. Justice in Judge McCarty's court.   I tried to blow the whistle on possible judicial misconduct and Witte doesn't like that.  It's exactly because of Witte's approach that we have Indiana attorneys remaining silent when faced with judicial misconduct.

I am undoubtedly the biggest public critic of Witte and the Commission.   Time after time I have seen the Commission fail to go after unethical attorneys who are doing great harm to the public while instead devoting enormous resources to going after attorneys who allegedly commit petty offenses, but have instead committed the greater offense of offending the Commission.  In that regard, I have no doubt that Witte will continue to file things against me until he assures I no longer have an Indiana law license.  He has devoted enormous Commission resources to that goal and will not quit until he is successful.

The Disciplinary Commission has been allowed to operate with very little oversight and no transparency for years.  It is axiomatic that any government agency that is allowed to operate under such circumstances will at best end up corrupt and at worst will end up with authorities in that agency abusing their power.   Clearly Witte is not above abusing his authority to target critics with the enormous power of the Disciplinary Commission, a fact I've personally experienced multiple times.

Witte, who is actually an appointment by former Chief Justice Randall Shepard, clearly lacks the temperament and judgment to sit as Executive Secretary of the Disciplinary Commission. He needs to be fired and the Commission's activities thoroughly investigated.   Every attorney I know is terrified of speaking out about problems with the Disciplinary Commission because of fear of retaliation. Nobody I have ever met though thinks the Commission is doing a good job or that its processes shouldn't be thoroughly investigated and reforms of the disciplinary process instituted. The time for that is long past due.               

Indiana's Terry Case Laid Groundwork for Disciplining Attorneys for Judicial Criticism Despite First Amendment

Indiana's primary is little more than a month away.  Candidates for several offices will be on the ballot, including people running for county circuit and superior courts, the trial courts in Indiana's judicial system.  How does a voter find out about those judicial candidates?  The primary source would be the attorneys who practice in those courts and ask them their opinion of the judges.

However, attorneys are not free to speak their minds when it comes to judges and judicial candidates. In Indiana, if an attorney dares to offer a negative opinion, such as that a judge lacks temperament, doesn't prepare adequately for trials and hearings, or seems biased towards the prosecution in criminal cases, that attorney can be prosecuted for a violation of Disciplinary Rule 8.2 and be suspended, even disbarred.

But what about the First Amendment?   Doesn't the Free Speech clause protect that speech?

The late Lendall B. Terry

Believe it or not, despite ample U.S. Supreme Court precedent to the contrary, Indiana says "no."

To find out how Indiana arrived at that position, one needs to turn back the clock to the 1970s and travel to Versailles, the county seat of Ripley County, in southeast Indiana. In 1972, Terry was elected Ripley County Circuit Court judge  Within a couple years the situation between Terry and the Ripley County bar had so deteriorated that the attorneys in that county filed a formal complaint with the Supreme Court Disciplinary Commission (back the Commission disciplined attorneys and judges) asking for the judge be removed for several acts of misconduct. Over strong dissents from Justices DeBruler and Prenctice, the Indiana Supreme Court in a 1975 opinion written by Justice Hunter voted 3-2 to remove Judge Terry from the bench.

That wasn't the end of former Judge, now private attorney, Lendall B. Terry's brush with the Disciplinary Commission.  Terry began publishing and distributing in Ripley County a newspaper called "Voice Against Corruption" accusing government officials of being involved in illegal activity.  Terry also asserted in correspondence directed to public officials of the state that Justice Hunter had conspired with attorneys and others individuals in Ripley County to cover up the criminal activity of a person named William Greeman.  Terry asserted that was what motivated Hunter to suspend him. 

Terry was charged with misconduct under a previous disciplinary rule that regulated criticism of judicial officials by attorneys, a rule that has essentially been replaced by Rule 8.2 of Indiana's Rules of Professional Conduct, which new rules were adopted in the middle 1980s.  Terry responded that he had reasonable suspicion to believe that a conspiracy had been formed to protect William Greeman and that his letters to public officials accusing Justice Hunter of misconduct was protected by the First Amendment to the Constitution.

The remaining four justices of the Indiana Supreme Court were faced with the situation that a colleague of theirs on the Court had been accused of being involved in the worst sort of conduct, but the speech was protected by the First Amendment as interpreted in New York Times v. Sullivan.     That was when the Indiana Supreme Court came up with the novel theory that he First Amendment does not apply to attorney criticism of judges, a theory that allowed the justices to get around the requirement set forth by the New York Times v. Sullivan requirement that actual malice is required to sanction speech critical of public officials. As to the question of constitutional protection, the Respondent argues that his comments and speech were permitted under the First Amendment; it is his further contention that the cases sounding in libel and slander are persuasive and instructive in determining the standard of misconduct to be applied in this case. We do not concur in this analysis.

The Respondent is charged with professional misconduct, not defamation. The societal interests protected by these two bodies of law are not identical. Defamation is a wrong directed against an individual and the remedy is a personal redress of this wrong. On the other hand, the Code of Professional Responsibility encompasses a much broader spectrum of protection. Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations. In the past, this Court has noted that a disciplinary proceeding stands independent of the course of litigation from which acts of misconduct may arise. In re Crumpacker (1978), Ind., 383 N.E.2d 36; In re Wireman (1977), Ind., 367 N.E.2d 1368. This independence is predicated on the unique nature of the interests protected through the disciplinary process.

In the present case, the Respondent is charged with making false accusations against a Judge. This prohibition touches the very core of the judicial process. Unwarranted public suggestion by an attorney that a judicial officer is motivated by criminal purposes and considerations does nothing but weaken and erode the public's confidence in an impartial adjudicatory process.

Matter of Terry, 394 N.E.2d 94, 95-96 (Ind. 1979)

In short, the Terry theory is that attorney speech critical of judges deserves no protection whatsoever under the First Amendment because the "societal interest in the public's confidence in an impartial adjudicatory process" is so important that the First Amendment doesn't protect attorney speech critical of judges.  The Indiana Supreme Court emphasized that its conclusion the First Amendment didn't apply was based not on the need to protect, the judge, but rather to protect the public ("society as a whole") which would be harmed if an attorney had free speech rights to criticize judges just like other public officials.

What U.S. Supreme Court precedent did the Indiana Supreme Court rely on in Terry to carve out of the Free Speech Clause an exception for attorney speech critical of judges?  Absolutely none.  There is no U.S. Supreme Court precedent which supports the conclusion that attorneys speech critical of judges is not deserving of the same free speech protection as attorney criticism of any other public official.  Justice Hugo Black in 1951 considered and rejected the Terry notion that restriction on speech critical of judges actually protects the judiciary:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."
Bridges v. California, 314 U.S. 252, 270-271 (1941).

In 1991, Supreme Court Justice Kennedy rejected the Terry rationale that disciplinary rules can be used to discipline an attorney for speech that would otherwise be protected by the First Amendment.

At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law….. We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.

Gentile v. State Bar of Nev., 501 US 1030, 1054 (U.S. 1991)

Kennedy rejected the notion that attorney speech could be limited because attorneys are more persuasive when talking about the judicial branch:

To the extent the press and public rely upon attorneys for information because attorneys are well informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.

Gentile, which dealt with an attorney making public statements about an ongoing trial, is the last attorney free speech case considered by the United State Supreme Court.  Although the Court was sharply divided and featured two floating majority opinions, the justices were united in saying attorney speech is protected by the First Amendment.  Justice Rehnquist, the author of the other majority opinion in Gentile, outlined the narrow circumstance under which an attorney's constitutionally protected free speech rights can be limited by disciplinary rules:

 

When a state regulation implicates First Amendment rights, the Court must balance those interests against the State's legitimate interest in regulating the activity in question. See, e. g., Seattle Times, supra, at 32. The "substantial likelihood" test embodied in Rule 177 is constitutional under this analysis, for it is designed to protect the integrity and fairness of a State's judicial system, and it imposes only narrow and necessary limitations on lawyers' speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by "impartial" jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. See, e. g., Sheppard, 384 U. S., at 350-351; Turner v. Louisiana, 379 U. S. 466, 473 (1965) (evidence in criminal trial must come solely from witness stand in public courtroom with full evidentiary protections). Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by petitioner. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing such costs on the judicial system and on the litigants.

The restraint on speech is narrowly tailored to achieve those objectives. The regulation of attorneys' speech is limited—it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.

            Id. at 1075-1076.

Unfortunately Indiana's Terry case set a precedent that became quickly adopted in other jurisdictions where state supreme court justices were looking to get around the First Amendment in order to sanction attorneys for criticizing their judicial colleagues. It is an approach that has zero chance of being upheld if and when the next attorney free speech case makes it to the U.S. Supreme Court.