He hasn’t been jailed like his teenaged, online-gaming counterpart, but Indiana attorney Paul Ogden is also facing government sanctions for what was an unequivocal First Amendment communication. In Ogden’s case, he may lose his right to practice law. His offense is insulting a judge…in a private e-mail.
Ogden represented a client before Superior Court Judge David H. Coleman, and was not happy with Coleman’s handling of the case. Neither were Coleman’s supervisors, who removed Coleman from the case for failing to act within an appropriate period of time, under the so-called “lazy judge” act. Attorney Ogden, who also blogs about politics, commented to a fellow attorney in a private email that Coleman “should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.”
Somebody, perhaps the original recipient of the e-mail, forwarded it to the judge (lawyers can be a back-stabbing bunch), and the judge, insulted, demanded an apology. Ogden refused (lawyers can also be stubborn and have a tendency to stand on principle even when it is going to get them in trouble). Because Ogden declined to grovel, Judge Coleman invoked Indiana Rule of Professional Conduct 8.2 and filed a grievance against him to the Indiana Attorney Disciplinary Commission. The Rule, which is essentially identical to the American Bar Association version, prohibits a lawyer from…
“…making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”
The alleged untruth here is that Coleman isn’t a “real judge.” Ridiculous. The statement is obviously sarcastic; Ogden is not claiming that somehow Coleman snuck into judges robes and messed up the case. What he means is that Coleman is a lousy judge, and Coleman knows that’s what he means—and he wants revenge. Ogden is determined to fight the Commission, which is prosecuting the charges against him, on First Amendment grounds, arguing that this is an obvious attempt to improperly use the ethics rules to punish him for communicating an opinion protected by the First Amendment. As Shiela Kennedy writes in her commentary about the case, 8.2 has a valid function…
“…it is meant to avoid statements that might prejudice a case, or demean the legal process and thus respect for the rule of law…In this case, the argument that criticisms of the court undermine public confidence in the justice system is simply not tenable, because the criticism was not public. And a comment in a private communication, made after the judge no longer sat on the case, could hardly prejudice the outcome.”
Besides that, private is private, and the comment doesn’t fit the prohibition in the Rule. Nonetheless, Ogden is being forced to battle to keep his law license.
Indiana University Robert H. McKinney School of Law associate professor Margaret Tarkington has described the ABA ‘s Model Rule of Professional Conduct 8.2 as “a trap for lawyers” in an article by that title published in the Association of American Law Schools Professional Responsibility Newsletter. She argues persuasively that the rule was meant to follow the Supreme Court of the United States standard of New York Times v. Sullivan holding that critical speech regarding a public official is protected from legal sanctions unless it is made with knowledge that it was false or with reckless disregard of whether it was false, what the law terms actual “malice.” But, she says, the majority of states interpret 8.2 to mean something very different, and place the burden on the lawyer to prove that what he or she said was true. This means that Ogden is required to prove true what he never seriously suggested wasn’t true…that Coleman isn’t a real judge.
She thinks that the rule, interpretative in that fashion, is probably unconstitutional, and that its application to Ogden is particularly egregious. She notes that the context of the criticism wasn’t in a judicial proceeding where the truth-seeking function of the justice system requires a higher level of accuracy in attorney statements. “He didn’t even put it on his blog,” Tarkington says. “An attorney should be able to talk about the judiciary in an email.”
Indeed one should, and this is the first instance I know of in which a judge has tried to claim otherwise. Judges, however have power, while disciplinary committees, and the lawyers who sit on them, know it’s not nice…or a smart career move…to make judges unhappy when they are trying to teach lawyers to respect their masters.
State governors have even more influence than judges. Thus the Indiana Attorney Disciplinary Commission took no action against Governor Mitch Daniels, an active member of the Indiana Bar, when he publicly attacked a Court of Appeals judge over the decision declaring Indiana’s Voter ID law unconstitutional.Speaking of Judge Patricia Riley, Daniels called the ruling “transparently partisan,” saying that it was “a preposterous decision, an extreme decision and came in this case from a judge who’s been reversed before and I expect it to happen again.” He also called the ruling an act of judicial arrogance.
This brought a firmly warded protest from the Bar, but no disciplinary action.
I’m proud to say that the bar I’m a member of, Washington, D.C., decided that Rule 8.2 was too vague, too subject to abuse, and too easy for the judiciary to use as a weapon of vengeance to include in its rules. The Rules of Professional Conduct in the District jump from Rule 8.1 to Rule 8.3. That doesn’t help Paul Ogden, though, who like Justin Carter, is being subjected to state persecution for making a sarcastic remark, in a private exchange.
Pointer: Legal Ethics Forum
Facts: Indiana Lawyer