Should a Private Email be Grounds for Public Discipline?

mad emailer

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.

(image: http://www.flickr.com/photos/reid_rosenberg/5616618789/)

Legal Ethics

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  • http://constructionlawva.com/ Chris Hill

    Lisa,

    I think that this case may or may not be the best to use for this discussion because anyone who has been in court has occasionally grumbled about a judge or the court’s procedure. However, I could see a situation where the content of the e-mail was more directly impugning a judge or making statements that are more clearly in the camp of disciplinary violations. I know this is a relatively typical “case by case” type lawyer’s response, but I don’t know that a rule that no private e-mails can be used would work any better than the opposite (all email can be subject to discipline).

  • Josh King

    There’s no basis for discipline here whatsoever. Outside of defamation, attorneys have a first amendment right to impugn the integrity of judges, just like everyone else.

    That doesn’t make it a good idea, however. And as this case shows, it’s important to draft every email as if it will be read publicly.

  • http://constructionlawva.com/ Chris Hill

    In this case, I agree with you Josh, I am just stating that a blanket rule against using e-mail as a basis for discipline isn’t in the cards, The moral of this story for me is as much “e-mails are forever, be careful what you put in them” as anything else.

  • Paula Marie Young

    What if the email had been completely in-house until disclosed? I can’t even tell my law partner about my experience in an email? What if the communication had been in an intra-office hard-copy memo that got out somehow and back to the judge?

  • pogden297

    I’m the attorney. Thanks for publicizing this case. Couple q7ick points. Rule 8.2 about impugning judges clearly requires the communication be made public. Second th e US Supreme Court has said attorneys isciplinary rules is when the have free speech like everyone else and the only time you can limit that speech with disciplinary rules is when the attorney is speaking out publicly to try to influence a finder of fact.

  • pogden297

    Sorry for the garbled message. Trying to write on my phone.

    • http://samglover.net/ Sam Glover

      Just FYI, you can edit your message when you get to a computer.

  • pogden297

    I’m going to try to rewrite my earlier message since I’m at a full-blown computer now. It’s hard to write on a phone. Again, I am the attorney. Some points I would make.

    First, the Disciplinary Commission in Indiana takes the position that ANY communication, written or verbal, in which a judge is criticized subjects an attorney to discipline under Rule 8.2. It doesn’t matter if it’s you just sitting around talking to a friend at lunch about a judge. The DC takes the position that if you say anything about a judge you cannot 100% prove to be true you can be subject to discipline.

    Second, the DC takes the position that it doesn’t matter if it is a statement of an opinion. If it if is an opinion, the attorney has to prove the opinion is true.

    Third, if you read Rule 8.2 and the accompanying notes, it is apparent that it is refers to PUBLIC statements, not private emails.

    Fourth, the U.S. Supreme Court has said that attorneys have free speech rights like everyone else and that the only time that disciplinary rules can be used to limit speech is when the attorney is speaking out publicly about a pending case in an attempt to influence the finder of fact, such as a jury. That was not the case here. The judge wasn’t on the case anymore.

    Fifth, Josh King is 100% correct.

    • http://samglover.net/ Sam Glover

      I hope you don’t mind, but I deleted your previous comments, since you’ve repeated and elaborated on their substance in this one.

      • pogden297

        No problem, Sam. Actually I thought I had done that manually on my end. I really appreciate the discussion of this issue. Any documents that any of the readers would like let us know. We’re briefing the issue for the hearing officer. Long story, but not optimistic about that. But he only makes a recommendation. We are more optimistic about the Indiana Supreme Court. And we would be very, very optimistic if the U.S. Supreme Court decided to hear the case. The USSCT, both liberal justices and conservative, have been very supportive of attorney free speech. Unfortunately, the state supreme courts don’t always follow those precedents.

  • stella

    I wish you don’t concepts, but I removed your past opinions, since you’ve duplicating and elaborated on their material in this one.

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