Sunday, October 13, 2013

104th Installment. State bars assault the First Amendment: The Paul K. Ogden Matter in Indiana

1. Muzzling lawyers under rule 8.2(a).

Judges in Indiana (and in most jurisdictions) are powerful elected public officials, who you would think are better equipped to defend themselves than are typical libellants. Then isn’t it curious that the ABA Model Rules of Professional Conduct, adopted by most jurisdictions (including Indiana), provides:
A lawyer shall not make 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, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (Rule 8.2(a) Indiana Rules of Professional Conduct.)
Making statements you know are false (or with reckless disregard for their truth) is the essence of “moral turpitude,” the term California uses. The version of the moral-turpitude statute used by the ABA Model Rules (and Indiana’s Rules of Professional Conduct) is rule 8.4(c), prohibiting lawyers from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” There’s no ambiguity in rule 8.4(c) requiring restatement of its prohibition of lying as it specifically applies to one target. Are lies better when they target an ordinary citizen or the President of the United States than when they target judges? From any angle, this is preposterous.

The state bars’ justification for this expression of pro-judiciary bias is that “officers of the court” owe a special duty to help maintain the judicial system’s appearance of propriety and integrity: lawyers attacking judges unfairly could erode public confidence in the judiciary.

Inasmuch as judges—through the state supreme courts—ultimately control the state bars, it isn’t remarkable that the rules accord judges special privileges, but imposing a duty on lawyers to maintain a certain public view of the judiciary is flagrant viewpoint discrimination. The public has the right to form its own opinion. Judges don’t have a democratic right to stage-manage their approbation by lawyers!

You might wonder how repeating a rule in a more specific form strengthens it. Are judges really provided special protections against defamation by lawyers—or is the obeisance to judges manifest in rule 8.2 pro forma? Imposition of discipline is reasonable when a lawyer defames a judge (or any citizen), but the protection judges enjoy is special because of the way rule 8.2(a) is interpreted. To show how, I turn to the Paul K. Ogden Matter in Indiana.

2. Vindictive Indiana Disciplinary Commission recommends Paul K. Ogden's disbarment for well-founded allegations of corruption.

The Disciplinary Commission of the Indiana Supreme Court wants to suspend Ogden for a year with no automatic readmission—tantamount to disbarment—for his alleged violation of rule 8.2(a) in a response e-mail (to an opponent party in a concluded probate case). Ogden wrote that the judge was dishonest and should be subject to discipline for his mishandling of the case, its litigation having Bleak Housed the estate. The recipient informed the judge, who demanded an apology that Ogden, standing on his First Amendment rights, refused to tender. The judge complained to the Disciplinary Commission, which had its own reasons to prosecute Ogden, who had blogged to expose the Disciplinary Commission’s almost total failure to prosecute lawyers in middle- and large-sized law firms.

Under the First Amendment, when a party states an opinion that a judge (or any other party) is dishonest, the statement is not defamatory if the party states the factual grounds. The judge took issue with only two facts. Regarding the first, Ogden had claimed that the judge was a friend of a probate opponent’s family and that he had recused himself from another of their matters. The judge didn’t say this (crucial objective fact) was false, only that he could recall no such recusal; he denied he was a friend of the family (which is, apart from the recusal, potentially a matter of opinion). Ogden had received this information from his client, whom he had the right to believe (and who was probably telling the truth); the court files failed to provide the name of the judge who had been recused. No one knows for sure whether the accusation was true, but relating what a client has assured the lawyer is true is hardly reckless; more fundamentally, it hasn’t been shown false.

The judge denied the second factual allegation, which was that the judge had opened the case unsupervised, pointing out that he assumed the case after it was already open. But the judge had maintained the case as an unsupervised probate matter; how it was opened is immaterial. Ogden’s accusation was substantially true.

3. Rule 8.2(a) affords judges special protection at the expense of free speech.

The character of the evidence against Ogden shows how judges receive special protection under rule 8.2(a). If Ogden had been accused of dishonest behavior under rule 8.4, it would be clear that Ogden had been perfectly honest. He criticized the judge on terms he reasonably believed were accurate and were essentially accurate.

The Disciplinary Commission construes rule 8.2(a) not as an anti-turpitude provision but rather as a judicial shield against criticism. First, the state bars shift the burden of proof to the respondent. To prove you’re dishonest, one must prove you a liar; but to prove that you impugned the integrity of a judge falsely, the absence of contrary proof suffices. Second, the Disciplinary Commission proves moral turpitude under a subjective standard, whereas the state bars judge recklessness under rule 8.2(a) relative to what a lawyer “should know,” which isn’t a dishonesty test. You aren’t dishonest for what you don’t know: prior knowledge or recklessness must be shown affirmatively.

Because judges are public figures, the protection from criticism afforded them infringes the First Amendment rights of lawyers. While some jurisdictions place the burden of proof on the defamation defendant, who must prove truth as an affirmative defense, the Supreme Court of the United States holds that liability for defamation of a public figure (such as a judge) must include proof of falsehood.

Another requirement for actionable defamation of a public official is the subjective standard for recklessness. (Times v. Sullivan.)

Other than the ordinary speech that is any citizen’s right, the issue of regulating lawyer speech arises mainly in two contexts. Pending litigation, the subject of Gentile v. Nevada, is a special circumstance; but the recusal-motion context proves the folly in requiring that a lawyer prove every allegation he makes against a judge’s integrity. When you consider recusal motions, it becomes obvious that the attorney’s duty to represent parties is compromised by regulating attorney criticism of judges. How can an attorney represent a client who is convinced that a judge is corrupt if the attorney is subject to disbarment when a hearing officer doesn’t find the allegation substantiated?

In Matter of Dixon the Indiana Supreme Court tries to weasel out of this contradiction by adopting a more permissive standard for recusal motions, appreciating the lawyer’s duty to his client. But allowing exceptions concedes the whole argument. If lawyers are so influential that the judicial system can’t tolerate their attacks on judges, why is the system resilient when the location is a recusal motion, which is of public record (unlike Ogden’s personal e-mail)? And when the Indiana courts hold that criticism of judges must be treated more permissively for some motions, it’s implausible that stifling lawyers’ harsh criticism of judges doesn’t reduce their capacity to represent their clients in other venues (obvious example, discussion among lawyers that might lead to a recusal motion).

4. Disciplinary Commission charges ex parte communication with judge, another frivolous charge.

The Indiana Disciplinary Commission is troubling Ogden over another matter: he is charged with ex parte communication with a trial judge, although Ogden had no pending cases related to the communication, which concerned questions of law. Again the Disciplinary Commission tries to hamstring lawyers. No principle of legal ethics or, for that matter, no part of the Indiana Rules of Professional Conduct prohibits communication with judges about questions of law when no cases are pending. Again, this creates a special regime for lawyers, inasmuch as an ordinary citizen is allowed to write to a judge. To ground this charge, the Disciplinary Commission turned to Indiana’s code of judicial ethics, which commands that judges not receive ex parte communication concerning their cases. Whatever this provision means, it does not forbid lawyers from trying to communicate with a judge about the law like any ordinary citizen might. If Indiana regulates judicial conduct in strange ways, it’s not the lawyer’s duty to avoid unwittingly tempting judges astray.

5. Conclusion.

Transparently, rule 8.2(a) is the judiciary shielding itself from criticism by lawyers. The judiciary’s rationalization is that lawyers are especially influential, but this no way passes muster under the First Amendment. A judiciary that protects its reputation for integrity by silencing lawyer critics (such as Ogden) is one that doesn’t deserve a good reputation. Maintaining a false public image of the judiciary is not a legitimate state interest under the First Amendment.

Rule 8.2(a) is corrupt to the core. Ogden intends to file for certiorari to the U.S. Supreme Court, but SCOTUS is unlikely to hear the case; being that the issues are so straightforward under its First Amendment jurisprudence, the Court couldn’t avoid holding for Ogden. The justices of the Supreme Court are unlikely to break ranks with their state brethren on an issue that, as collateral effect, would decrease judges' status.

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