Trading the First Amendment for a Law License?

Yesterday’s Indianapolis Star carried a story about Paul Ogden and the Supreme Court’s Disciplinary Commission. It’s a story that should trouble anyone who really cares about the First Amendment, but especially lawyers.

The facts are fairly simple: Ogden represented a client before Hendricks Superior Court Judge David H. Coleman. In a private email,  he criticized the Judge, opining that he had a conflict of interest. At the time he wrote the email–and again, I note that this was a private communication–the judge had already been removed from the case for failing to act within an appropriate period of time.

It is unclear how the judge even found out about the email, but he did, and demanded an apology. Ogden refused. ( Paul is one of those people who will stand on principle even when doing so will clearly cost him.) Had he apologized, that would have been the end of it. Since he didn’t–he faces loss of his license to practice law.

Think about that for a minute. A “transgression” that could be cured by a simple apology is nevertheless so serious that the Disciplinary Commission can respond by destroying a lawyer’s ability to make a living. And what is that transgression? “Defaming” a judge by criticizing him in a private email.

As a recovering lawyer, I find this seeming vendetta very troubling. As a lifelong civil libertarian, I find it dangerous.

The Disciplinary Rule prohibiting certain criticisms of courts and the justice system is there for a reason–it is meant to avoid statements that might prejudice a case, or demean the legal process and thus respect for the rule of law. Imposing that rule in a case where a lawyer has publicly cast aspersions on a judge or court can be justified–although even then, there are limits imposed by the free speech provisions of the First Amendment. (I recall another Indiana case where a lawyer included a snide remark in a footnote in a brief he filed. The brief was a public document. The Indiana Supreme Court sanctioned the attorney; the U.S. Supreme Court overruled that decision, citing the First Amendment.)

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.

Most of us, caught in a similar situation, would have simply given the Judge the apology he demanded, thus making the problem disappear. It is a rare lawyer who will risk his license to defend a principle, even a principle as important as our First Amendment right to speak our minds.

Perhaps there is more to this story, but from what has been reported it seems to me that the person “demeaning” the justice system is the Judge who pursued this complaint. As a practical matter, no one would ever have known about the allegation of a conflict had the complaint not been lodged.

The larger question, of course, is whether the receipt of a license to practice law comes with a condition that the recipient relinquish the future exercise of his or her First Amendment free speech rights. If so, those considering the practice of law might be well advised to rethink that choice.


  1. One might be able to conclude that by pursuing a complaint, this judge is actually agreeing with the Paul’s private assessment, but but just finds that conclusion personally insulting. I would think that judges might have thicker skins than this one seems to have. Still, what can we expect from a system where judges are elected to office? Competency, mediocrity, or incompetency seems to have less to do with the process than playing politics and paying a political party for ballot access. I suppose the same could be inferred for state officials who are appointed to their positions as well.

  2. Most of us, caught in a similar situation, would have simply given the Judge the apology he demanded, thus making the problem disappear. It is a rare lawyer who will risk his license to defend a principle, even a principle as important as our First Amendment right to speak our minds.

    I am not an lawyer but am interested in whether the conflict of interest statement is true or false and would reading another person’s private E-mails be an invasion of privacy. Surely this doesn’t fall under the Patriot Act where spying on others is not only allowed, it is codoned by the courts. In my mind, to apologize would not make the problem disappear but would exacerbate the issue by giving this judge or any judge the power to read anyone’s private E-mails…or tape conversations, film them during private times or spy on them for personal reasons. I thought the job of and oath sworn to by lawyers was to defend principles, including their own. The judge may have the right under freedom of speech to ask for an apology but…does he actually have the right to file charges and destroy a person’s career? Can this be considered a frivolous law suit? I did read the article and it appears the only person involved with any civil rights is the “offended” judge. This brings me back to my original question; was he comment true or false or is anyone in the legal system interested in the truth?

  3. Thank you, Sheila, for standing up for Paul on principle. I wish more attorneys would do the same.

  4. Sheila –

    I totally agree with your points. Courts seem too often to have “rabbit ears” and are seeking to discipline lawyers for criticism.

    However a small matter of correction. The case to which you referred involved a reprimand against attorney MW for including a footnote in an appellate brief to the Indiana Supreme Court suggesting that the Court of Appeals engaged in “results-based” reasoning — that is, that the court decided what it wanted to do, then looked for a legal justification for reaching that result. The disciplinary decision was not appealed to the US Supreme Court – though many encouraged MW to do so. On rehearing before the Ind.Sup.Ct , one judge who participated in the original decision recused himself. T Court then voted 2-2 on rehearing, which meant that the original,discipline was allowed to stand. NOTE: MW was did not even write the brief or the footnote. He was local counsel for a Michigan lawyer who drafted the brief.

  5. Has anyone posted the content of the e-mail. The precise assertions might make a difference. Also, I believe comments made about a judicial officer involved in a case where you are representing a client make you and he more part of the judicial process — and subject to the professional ethics regulations — than, say, an attorney opining about a judge where the attorney has no client involved or other professional interest.

  6. Not being a legal person, I still hear about the tendency for some judges to be into power, being arbitrary and getting huffy about their position. This story goes into that file. I should think that the guy would not want that story spread around, but arrogance and insensitivity can flatten that affect. Glad that I’m not an attorney or a defendant, especially in this case, or who knows how I would spend the next few Christmases if the guy reads my comment?

  7. Thanks for the correction! I should never rely on memory….All I recalled was that the original decision was not upheld by the Supreme Court, and jumped to an unwarranted conclusion.

  8. Paul Page and David Wyser have both entered federal courtrooms this year and pleaded guilty to serious federal felony charges involving a breach of the public trust. Yet the DC has not instituted disciplinary action against either of them according to the Indiana Roll of Attorneys.

    Doug, The facts of what happened with the administration of that estate are ugly. Paul’s point was that what happened in Hendricks County would have never happened in Marion County where we are fortunate enough to have a dedicated judge and commissioners who specialize in probate law and help ensure things go as smoothly as possible for all concerned. As I understand it, the case got passed from judge to judge so what transpired throughout the estate’s tortured history didn’t occur entirely on the watch of the judge who was removed due to Paul’s lazy judge motion, which I believe is why he took such offense to Paul’s criticism according to comments he made to the Indiana Lawyer. If I had been Paul, I would have offered the apology the judge requested, even if it pained me to do so. I find it repulsive that the individual took that private e-mail fully understanding the purpose in doing so and gave it to the judge in what would seem to be an ex parte communication.

  9. Doug,

    The US Supreme Court has said that we attorneys are like anyone else when it comes to free speech and that our speech cannot be proscribed because we’re a member of the bar except when we’re speaking out publicly in such a way that it could affect the public administration of a case. The Court also said that disciplinary rules (such as Rule 8.2) cannot be used to override that principle.

    Nonetheless, Rule 8.2 deals with protecting the public’s view of our judiciary as being one high in esteem. You read the comments under the rule, it obviously refers to public statements…not an email between people involved in the case who already know the criticism of the judge’s handling of the case. The DC though takes the position that any conversation an attorney has in which he criticizes a judge is subject to Rule 8.2 sanctions no matter how private that conversation is.

  10. I have very often disagreed with Paul Ogden on political matters. But being held to account for an opinion in a private email about a judge troubles me greatly. That opinion may or may not be overly harsh, rash, or even incorrect, but as long as we are not publicly holding the profession and the judiciary up to disrepute, I think we as lawyers should be entitled to our opinions, as with any other public official.

    Mr. Ogden has also been publicly critical of the Disciplinary Commission, and this action also troubles me as giving the appearance of payback.

  11. Funny, as part of the “public”, Paul’s actions do not tend to “undermine” my “confidence in the administration of justice”; the Disciplinary Commission’s actions, on the other hand, do.

  12. Thanks Sheila for defending Paul’s free speech rights to call government officials to account
    without jeopardy. The disciplinary commission should throw this out. I agree this sounds like ‘payback’ from both the judge and the commission and since both are comprised of lawyers who swear to uphold the constitution, BOTH should know better.

  13. I’m concerned about the privet e-mail reaching the judge. Does Paul know how this happened?

  14. Mark, what happened was Paul and opposing counsel were emailing each other. The other attorney was “cc”ing other case participants. This ended up resulting in an email exchange between Paul and the book keeper for the executor. The book keeper printed the emails and took them to the judge.

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