A Hearing is scheduled July 30, 2013 about an Indiana lawyer who criticized judge in private e-mail. This is the same rule adpted in Kentucky as SCR 3.130, 8.2. A prosecution of attorney John M. Berry Jr. by the Ky. Bar Association ended up costing them close to $400,000 in attorney fees when the 6th. Circuit ruled in favor of Berry. Unfortunately the 6th. Circuit left the language of the rule intact and Indiana now seeks to silence one of their attorneys. Their upholding of Berry’s motion to dismiss was limited by the “as applied” rule. That means that anytime the KBA and the Ky. Supreme Court wants to….they can sanction an attorney if he makes any statement about a “judge or public legal officer” which they find is “reckless”. It doesn’t matter that the statement is true if they determine the statement is “reckless”.

Calls for the Ky. Supreme Court to follow the lead of Ohio in changing the language of SCR 8.2 have so far been ignored.

It’s hard to tell exactly what happened from these two news articles in the Indiana Lawyer and the Indy Star, but it appears that an Indiana lawyer, Paul Ogden, criticized a judge in private email correspondence to opposing counsel and is now facing disciplinary charges under 8.3. IU-McKinney professor Margaret Tarkington is quoted about lawyers’ First Amendment rights. In the email, the lawyer had said that the judge in the underlying matter:

“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.”

Tarkington’s views are captured in this excerpt:

Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.

“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”

It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.

In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.

Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.

Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

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