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Indianapolis attorney-blogger Paul Ogden faces judicial disciplinary complaint

September 1, 2013

All he had to do was apologize.

 But Paul Ogden wouldn’t — and now the Indianapolis attorney may lose his license to practice law for privately criticizing a judge. Today, Ogden will attempt to acquit himself at a public hearing conducted by the Indiana Supreme Court Disciplinary Commission.

He’s hanging his defense on the First Amendment’s guarantee of free speech. But the ability to exercise that basic right gets murky when it comes to working lawyers, who relinquish some of their speech protections.

Ogden is expecting the worst but said he’d rather face a suspension or lose his law license than hold his tongue.

That response comes as little surprise to those who know Ogden or read his blog at OgdenonPolitics.com, where he often unleashes caustic attacks on politicians and bureaucrats, the legal community and media. Among his targets: the disciplinary commission that now holds his fate.

It was Ogden’s criticism of Hendricks Superior Court Judge David H. Coleman in a private email, however, that landed him in trouble with the commission. The judge learned of Ogden’s comments alleging he had a conflict of interest in a case in which Ogden represented a client. The judge asked for an apology. When the attorney refused, the judge filed a complaint. “I was standing up for a client who got a raw deal,” Ogden said. “As far as I can tell, this is the first time they have gone after an attorney for something said in a private context. My question is: How far are they going to go? Attorneys criticize judges all the time, and this could have a real chilling effect. This is about more than me.”

While Ogden appears to face an uphill battle in the fight for his legal future, the First Amendment protects his speech, said Margaret Tarkington, an associate professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.

It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.

In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.

Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.

Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

Lawrence G. Walters, a Florida-based attorney who has a national First Amendment law practice, said there are some legitimate reasons for limiting what attorneys can say, but those are primarily related to comments inside the courtroom and about pending cases.

“There’s a certain level of decorum and formality that is essential to permit the proper administration of justice,” he said. “The public has to have faith in the system, that it’s not a circus.” Attorneys should have more freedom outside the courtroom, Walters said, “so long as it doesn’t affect the administration of justice.”

Ogden contends his comments had no bearing on the case. The judge he criticized already had been removed, at Ogden’s request, for failing to act within established time frames. “I have been very critical of the commission,” he said. “I think a lot of it has to do with that.” His past complaints have included asking the Supreme Court to “take a good look at what is going on at the disciplinary commission and investigate how it operates,” Ogden said. In fact, the charges that he violated professional conduct standards came not long after Ogden wrote a blog post criticizing the commission. His claim: The panel recommended action more often against individual and small-firm attorneys, while ignoring the actions of attorneys with the state’s big law firms.

“Maybe I’m paranoid,” Ogden said, “but shortly after that, I started getting things filed against me.”

Ogden contends his comments had no bearing on the case. The judge he criticized already had been removed, at Ogden’s request, for failing to act within established time frames. He suspects the disciplinary action really is more about his criticism of the commission. “I have been very critical of the commission,” he said. “I think a lot of it has to do with that.”

His past complaints have included asking the Supreme Court to “take a good look at what is going on at the disciplinary commission and investigate how it operates,” Ogden said. “They need to go after attorneys doing unethical things, who are endangering the public.”

In fact, the charges that he violated professional conduct standards came not long after Ogden wrote a blog post criticizing the commission. His claim: The panel recommended action more often against individual and small-firm attorneys, while ignoring the actions of attorneys with the state’s big law firms. “Maybe I’m paranoid,” Ogden said, “but shortly after that, I started getting things filed against me.”

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Indianapolis attorney-blogger Paul Ogden faces judicial disciplinary complaint

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