SHOULD YOUR LAWYER BE GAGGED?An Indianapolis lawyer indicates that he is facing a disciplinary proceeding for, among other things, something he said about a judge in a private email.  If he’s right, the implications may be of concern to everyone.

Paul Ogden is the attorney in question. His blog can be found here at ogdenonpolitics.com

He spares few if any details. I don’t believe I’ve met Mr. Ogden, and I have no opinion to offer about the merits of his claims.  I share his concerns about disciplinary overkill in matters involving expressions of opinion by attorneys.

Just over a decade ago, Indiana’s Supreme Court whacked a lawyer with a 30 day suspension for, in essence, criticizing of court of appeals decision too harshly.  This should scare anyone who believes the legal system should be a guardian of freedom.

The case I’m referring to, should anyone want to have a look, is In the Matter of Wilkins, 777 N.E.2d 714 (Ind. 2002).  It was reassuring to see two of the five then-sitting justices of the Court dissent, finding the attorney’s comments “within the broad range of protected fair commentary on a matter of public interest” (quoting from Justice Boehm’s dissenting opinon).

Back in the 90’s, a friend of mine ran for judge in a nearby county, and pledged to hold night court to reduce “the backlog of cases.”  She ended up with a public reprimand despite the fact that her “brochure may have been technically correct.”  In Re Bybee, 716 N.E.2d 957 (Ind. 1999),  Hmmm.  An attorney slapped for disseminating correct information.  Quick GPS check:  We’re still in America, right?

How close has this issue hit to my own home?  Somewhat.  Nearly a decade and a half ago, DelawareCounty’s prosecutor, Rick Reed, faced a disciplinary action after criticizing a local judge (whom I won’t name here, given that she later lost an election and started a new life elsewhere).  Among his offenses: telling a reporter that the judge’s “arrogance is exceeded only by her ignorance.” I my effort to be helpful to the cause of free expression, I submitted an affidavit to the Disciplinary Commission in which I, as then president of the local bar association, opined that “many of my colleagues would agree with the statement that ‘her arrogance is exceeded only by her ignorance’, although some might argue that it’s the other way around.”  I amused at least myself with that affidavit – but was nearly sanctioned for it, according to a source I trust.

THE BOTTOM LINE:  Who is best positioned to comment on courts and judges?  Those who practice before them.  Judges who can’t stand the heat should stay out of the robes.

* * * TALE FROM THE TRENCHES – OR URBAN LEGEND?

Let’s ignore the question of whether Muncie, Indiana is urban enough to have an urban legend.  I heard this from a source I consider quite reliable, so I’m going to pass it along as fact.

A woman was testifying in a court proceeding involving the placement of children. She was asked, “what’s your connection to the children?”  She said, “I’m the aunt.”  She was asked, “are you the aunt on their dad’s side or on their mother’s side?”  She replied – feel free to blurt it out if you see it coming – “both”.

* * *  

MULTI-TASKING LAWYER OF THE WEEK

Samyr Laine is a triple jumper who competed for Haiti at the 2012 Summer Olympics.  He is a Georgetown graduate who has worked for a couple of New York law firms.