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.

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.

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.