Lawyer’s Speech and Advertising – Trouble in the Making

Ethnic Slurs Will Not Be Tolerated

“Your client doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with.”

The lesson of Joe Barker is to not use this method of trying to resolve a parenting time issue. At least I hope that is the lesson, because the only other potentially “burdensome” act is to state that “we’ll be demanding she be put in JAIL for contempt of court.” (emphasis in original).

The Indiana Disciplinary Commission filed charges and the Supreme Court imposed a 30 days suspension from the practice effective Oct. 14, but not allowing Barker to undertake new legal matters between Sept. 6 and Nov. 14.

Costly outburst, for aggressive advocacy.  No prior disciplinary issues, but Barker “has no insight into his misconduct.” Charges filed in 2010, and just now being concluded.  This matter was heard by Judge Kim Brown acting as the hearing officer for the Indiana Supreme Court.  Judge Brown has her own problems now with the Judicial Qualifications Comm. and one of the charges she must answer to related to the length of time she took in completing this matter.

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Faxing Those Canned Newsletters as a Means of Advertising 

Many of us get and a few of us have used the canned newsletters that inform our clients and potential clients that we are current on some legal topic or another.  And 25 years ago the fax machine helped make sharing our knowledge as cheap as the price of a phone call.  Now with the internet, it is even cheaper, unless!

Greg Turza, an IL lawyer got caught up in the practice of faxing newsletters to lots of folk.  He had 200 people or businesses he would fax his newsletters to.  He forgot to read the articles about the Telephone Consumer Protection Act of 1991, 47 USC 227.  But a few of the recipients did not overlook that issue.  The federal law states that senders must have consent to fax advertising materials, and that unwanted faxes must have opt-out provisions on the materials. The penalty is $500 per fax, per recipient. Oops.

$4,215,000 penalty and judgment against Turza for 8,430 faxes was upheld in the 7th Circuit. Will he pay it?  If he does, then the opinion by J. Easterbrook takes on some interesting aspects with what happens to the damage award.  It looks like the lawyers will demand their $1,430,055.90, and lead plaintiff will expect his $7,500 for the 32 faxes (seems like it should have been $16,000).  Who after that will get paid?  Remanded to determine after the $1.437M is paid into the court.

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Lawyer’s Speech and Paul Ogden

Anyone who cares about the boundaries of lawyers’ freedom of speech rights and the consequences of the disciplinary process in Indiana must pay attention to the ongoing saga of Indy lawyer (for now) Paul Ogden and his long battle with the Disciplinary Commission, former Executive Director Don Lundberg, current Executive Director Mike Witte, the Supreme Court, and a Hendrick County judge in a seemly private email.

You can catch up by following this link to Ogden’s blog site, the tagline Disciplinary Commission, where it appears he is telling his side of the story. He also links to the Indiana Business Journal’s editorial on the priorities that the Disciplinary Commission has shown in pursuing Ogden instead of others, including Paul Page, David Wyser and the handling of William Conour.

The current DI matter, criticizing a judge in violation of the rules. has been heard by the hearing officer who will make findings and a recommendation to the Supreme Court.  Ogden predicts that he will lose his law license.

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Seeking Recusal as a Basis for Discipline? 

In a story that has not made local impact, except for Ogden’s blog, a pro-life website Life Site News in 2009 reported that a couple of local lawyers were seeking the recusal of a South Bend judge due to perceived prejudices of the judge’s husband, a noted advocate for abortion rights. The defendants before the judge were pro-life advocates arrested for protesting on the Notre Dame campus when President Obama spoke at graduation.

Ogden reports, and I have verified by the Clerk of the Supreme Court Docket Sheet, that disciplinary charges are on file against Thomas M. Dixon and David A. Wemhoff, the lawyers in the ND88 case.  The docket sheet does not inform the nature of the charge, but Ogden says the recusal issue, as an unwarranted attack on the judge is at the heart of the matter.

This will also bear watching, if you have a tendency to speak the truth to power, or try to protect your clients from a judge who should not hear a particular case for a particular litigant.

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I remembered these matters last week, when I got a call from a lawyer in Indianapolis, to ask about the judicial temperament and other qualities of a certain judge in Northern Indiana.

I apologize to you in advance, but for now, if you call and ask about the character, quality or work ethics of any judge, please understand that my “walks on water” response might be code.  Or it might not.

In my opinion, lawyers must be able to state facts and reasonable (to the reasonable person standard) opinions about judges in pleadings, (especially in recusal motions) and in conversations with clients, lawyers and the courts.  Judge Witte benefitted from those kinds of comments in his time on the bench, and in moving to the Commission. Other judges should have that benefit, or if they are poor judges, that burden.  We do this justice thing for those standing before the bench, not for the one on the bench or the ones at the bar.

It is dangerous if we lawyers cannot protect the rights of our clients, under the rules, by seeking the recusal of judges who are bad fits for the clients’ cases, just like we are duty bound to seek the dismissal of a juror who has some bias or prejudice against our client.

KEEP A WATCH OUT,  as Indy lawyer Patrick Olmstead and I will be speaking on advertising and ethics at the 2014 Solo and Small Firm Conference in June 2014, at French Lick.

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