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.