So you already probably know you shouldn’t use your law blog to do things like trash crime victims or talk smack about judges. What about if you mouth off about a judge in a private email communication and you’re unlucky enough to have that email reach said judge? Should you reasonably expect a disciplinary action based on that (ostensibly) private communication?
Maybe. An Indiana lawyer and blogger is facing disciplinary action for statements he made in an email to opposing counsel. A couple years ago, Paul Ogden wrote a post about Indiana’s Disciplinary Commission and stated that in a stretch of time where 400 attorneys were disciplined, only three of those came from Indiana’s top 24 largest firms. After this post, Ogden was hit with a disciplinary complaint – but not (theoretically) for the blog post. Instead, Ogden got in hot water for his email to opposing counsel complaining about a judge:
Ogden wrote that [Judge] Coleman “should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.” Ogden claimed, among other things, that the estate’s value dwindled from about $1 million to almost nothing due to improper oversight.
So was this “traditional sore loser sour grapes blowing off steam” talk or “impugning the integrity” of a judge talk? Tough to say. The disciplinary charge is based on, of course, that the comment about the dwindling estate value was meant to imply that the judge had engaged in some sort of wrongdoing and that Ogden knew full well that such a comment was false or recklessly disregarded whether it was false or not. However, this post isn’t intended to be an exegesis on the professional responsibility rules and whether this standard is appropriate or whether Ogden was just expressing a hyperbolic opinion or stating that the judge was grifting from the estate. It isn’t even a discussion of the more meta issue of First Amendment protection lawyers should enjoy as distinct from regular folk. Rather, this post is about how emails, much as we would wish them to be, are not ephemera, are not the same as grumbling to a friend at a corner spot in the bar about how stupid/misguided/criminal a judge might be.
Certainly having just verbalized these speculations that the judge is crooked or incompetent or both could likely run you afoul of a disciplinary board, but it’s much harder to envision. First, the reporter of your bad-mouthing would likely be someone who is already perceived to be less-than-friendly to you – like opposing counsel. Because of that, their running to the disciplinary board because you said mean words is likely to be perceived as childish rather than informative. Next, there’s simply no record of your one-time verbal malfeasance, which makes the whole idea of pursuing you for wrongheaded words that evaporated into thin air difficult to fathom. By placing those thoughts into an email, though, you’ve transformed them from a transient moment of unhappiness to a permanent record of your fit of pique.
Is putting it in an email unwise? Undoubtedly. Is it unprofessional, in the broad sense? Sure. Is it not the brightest move to put these sentiments into an email to opposing counsel, who is presumably the person that made sure the comments got to the judge? Absolutely. Do these things add up to a professional responsibility violation? I don’t think it is as easy to tell. Are we prepared to live with a hard and fast rule that any speculating on the motives for a judge’s behavior (incompetent? or criminal? why choose!) in a private setting that was never intended to reach a larger audience is grounds for a disciplinary action? Put another way: does our view of the propriety of this action change if we remove the fact that it was written in an email and therefore memorialized?
There is no doubt that lawyers are held to a higher standard of communication, and rightly so. There is no doubt that the integrity of our system depends partly on the notion that lawyers are not allowed to publicly impugn a judge with false accusations simply because they judge did not give that lawyer the result he or she desired. There’s also no doubt, however, that we consider our email communications to be between ourselves and whoever we are emailing (insert obligatory NSA joke here) and we don’t consider them a public statement like a blog post. So – is this a straightforward situation where Ogden should rightfully be in trouble no matter which method he used to express himself or is it a bit more gray given that we think of email as casual and private, like a phone call? No matter which answer you choose, you can rest assured that we’ll be doing this entire analysis all over again each time a new mode of communication comes along.