Tuesday, February 15, 2011

Indiana Wants To Be Ohio

Congress shall make no law . . . abridging the freedom of speech, or of the press.
That's from the First Amendment, and by now it's well settled that it isn't just Congress that's constrained by that "shall make no law" thing.   It's all of government: federal, state, local; executive branch, legislative branch, judicial branch.
Oh, wait.  The judicial branch is just fine with making laws abridging those freedoms.
(Yeah, I know; there are actual laws enacted by Congress and state legislatures that abridge freedom of speech and the press.  Lots of them, in fact.  Nobody who had any say in the matter except Hugo Black ever really thought that "no law" meant no law, and even the good justice didn't really believe it.  But for the moment, I don't care.  The statement is close enough, and this is all just the set up for what I want to talk about.  Ignore that sentence if the detail bothers you.)
Where was I?  Right, the judicial branch.
See, we tend to like free speech as an abstract concept.  It sounds good and noble that the government doesn't get to control what you say.  But the reality is that we mostly don't like free speech all that much.  Free speech absolutist Nat Hentoff put it in a book title.
Free Speech for Me--But Not for Thee
There's actually a sub-title, too, but it's of no moment here.
But back to the judicial branch.  Sigh.
I've made fairly regular mention here of the Mark Gardner Rule.  I discussed it most fully in this post.  The essence of the Rule is that Ohio lawyers (it's an Ohio Rule, made up by the Ohio Supreme Court) cannot criticize the Ohio judiciary.  The court didn't phrase it that way, of course.  But that's essentially what the court said in Mark's case.  Fortunately, they don't apply the rule as rigidly as that makes it sound.  But there's no reason to think they won't if it suits them.
Mark's problem was that he got pissed off at what he viewed as an intellectually dishonest appellate decision.  Then he told the court, in some detail and with no tact whatsoever, what he thought of the decision.  "Foul," cried disciplinary counsel.  "Very foul," said the Ohio Supremes.
Lawyers can, of course, speak the truth about the courts and about judges even if the truth is negative, the court said.  The court also said that truth about courts and judges is what reasonable lawyers believe to be true, regardless of objective fact.  (The court left out that last phrase.)  And because reasonable lawyers believe courts and judges above reproach, anything negative a lawyer says is false and the lawyer can be punished for it.
If you head due west from Ohio, you're going to find yourself in Indiana.  Should you be there in the next 6 months and need a lawyer, don't expect to be hiring Patrick K. Rocchio who didn't know Indiana had the Mark Gardner Rule.
Actually, maybe they don't.  I mean, there's no question that the Indiana Supreme Court slapped Rocchio down hard for saying intemperate stuff, but unlike the Ohio Supreme Court, they didn't articulate a bizarre constitutional standard to justify their action.  They just did it.
See, Rocchio is an attorney in both Michigan and Indiana, mostly practicing in Michigan.  Rocchio was charged in a 2 count disciplinary complaint in Indiana.  In the first count, he was charged with sending a solicitation letter to D.W., an accident victim, without writing on the letter and the envelope "Advertising Material."*  In the second count, Roccio was charged with not mentioning on his website that he had allowed his Indiana license to become inactive.**
These are violations of Indiana's disciplinary rules, but minor ones.  The Supreme Court opinion made that clear.
We find that Respondent, Patrick K. Rocchio, engaged in attorney misconduct that, standing alone, would warrant a sanction in the lowest range.
. . .
This Court has imposed a public reprimand on a number of attorneys who have violated the rules on written communications, e.g., Matter of Benkie, 892 N.E.2d 1237 (Ind. 2008); Matter of Huelskamp, 740 N.E.2d 846 (Ind. 2000), and in some cases an even lesser sanction. Standing alone, that would be our assessment of the sanction warranted here. The addition of the website violation would not warrant an increased sanction.
But the "misconduct" didn't stand alone.
Respondent‟s actions throughout the disciplinary process constitute substantial aggravating circumstances requiring a concomitant increase in sanction.
Ooops.  Here's the Mark Gardner stuff.
Respondent‟s Brief in Support of Petition for Review includes the following:
       It must be stated, at the risk of offending others that anyone who has not suffered a full frontal cranial lobotomy knows that the words published on a Michigan lawyer's law office internet describing his professional narrative, in-cluding his licensing credentials, is not the practice of law in the State of Indiana.
       . . . .
       This rather bizarre and foolish disciplinary process regarding my alleged attorney misconduct long ago moved away from the focus upon the misdeeds de-scribed in the Verified Complaint.
       This proceeding is about behavior and protocol; what to say and how to behave in the presence of the supreme monarchy, or in this situation, the repre-sentatives of the Indiana Supreme Court who alone decide what is and what is not attorney misconduct subject to discipline.
        . . . .
       My experience with the Indiana attorney disciplinary system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self-image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp . . . .
         Similar examples can be found on nearly every page of Respondent‟s briefs to this Court and to the hearing officer, as well as in his correspondence to counsel for the Commission and in his testimony before the hearing officer. The hearing officer noted Respondent‟s invectives against the Commission's former executive secretary ("a first-class ass"), the Commission ("soft and lazy"), the disciplinary process (“a modern day version of the Star Chamber, a Salem witch hunt, or a Spanish Inquisition”), and this Court‟s disciplinary rules (“frivolous and antiquated,” “rules of behavior conceived over a cigar and brandy . . . during the late Victorian Era by a group of self-impressed lawyers”), as well as his repeated use of caustic terminology (e.g., “despicable,” “deceptive and ridiculous,” “naked stupidity,” “cutesy and evasive”). The Respondent also engages in personal attacks on the hearing officer, calling her “sadistic” and displaying “a disappointing level of ignorance, arrogance, and stupidity.” We concur with the hearing officer‟s finding that “Respondent‟s inflammatory statements were not spontaneous remarks made in the heat of the moment, but were his planned, intentional, oft-repeated comments.”
         In addition, Respondent is totally non-repentant. He makes clear that he believes this Court's rules governing lawyer employment solicitation and this entire proceeding are silly. In an email to Commission counsel, he stated that if he had a chance, he would again send the letter to D.W. Near the end of this testimony before the hearing officer, he went into great detail describing how he would essentially do it all over again, at least for a Michigan resident. He stated: "I will not misrepresent the content of my letter by trivializing it with the notation 'Advertising Material,'" and "I will be thankful that Michigan does not attempt to impose frivolous and antiquated regulatory restrictions upon its licensed attorneys . . . ."
I get it that you're supposed to at least seem remorseful.  Any even marginally competent lawyer would have told Rocchio that expressing disdain for the disciplinary process would almost certainly come back to bite him.  Really, he shouldn't have done it, shouldn't have said it.  Even if it's true.  Because his statements may be constitutionally protected.
Except he's a lawyer.
So they're not.
In re Rocchio                                                            
Which means he can't say that the court and the judges and the legal system all suck.
I, of course, would never say such things.
Here's Pete Seeger singing Tom Paxton's "What Did You Learn In School Today?"

*Disciplinary rules routinely assume that members of the public are regularly fooled by advertisements that don't state they are advertisements into hiring lawyers because of what the advertisements say.  Presumably, if the imbecile public were told the lawyer who sent them an ad wanted to be hired, they would hire someone else.  Or something.
**Note that he wasn't charged with representing or even trying to represent anyone in Indiana while his license there was inactive, just in not mentioning on his website that it was inactive.  For the record, my Texas license is inactive.


  1. Jeff,

    You might be interested to know that this site seems to have filched your content without even any attribution: http://law.hukuki.net/indiana-wants-to-be-ohio.htm

    (I googled 'Mark Gardner Rule' after reading this and it came up. It's not that I'm some sort of content theft vigilante.)


  2. Thanks, Tim. That's not the first time hukuki (whatever the hell that is) has done that. On the other hand, since they also strip out all the formatting (including paragraphs) and links and pictures and the like, maybe I don't really want attribution.

    They are (it is?) a disgrace. And while I wish they'd stop, I'm not sure how I would go about stopping them or that it would be worth my effort.