May Primary
Days
Hours
Minutes
Seconds
The Indiana Citizen
September 25, 2023
The admissions last week by Indiana Attorney General Todd Rokita that statements he made on national television in the summer of 2022 could “reasonably be considered” to violate attorney ethics have surprised members of the legal community.
Rokita’s actions also hint that he may be negotiating an agreement to resolve the disciplinary complaint filed against him.
Rokita has been criticized by lawyers, law school professors and judges for his public comments about Indianapolis OB/GYN Caitlin Bernard. The state’s top lawyer targeted Bernard after The Indianapolis Star broke the story of her performing an abortion on a 10-year-old Ohio girl who had been raped.
On Sept. 18, the Indiana Supreme Court Attorney Disciplinary Commission filed a complaint, alleging Rokita violated three rules of professional conduct for speaking about his office’s ongoing investigation into Bernard. Much of the complaint focuses on his interview on July 13, 2022, on Fox News, during which he referred to Bernard as an “abortion activist acting as a doctor – with a history of failure to report.”
Attorneys facing a disciplinary complaint have at least 30 days to file a response with the state Supreme Court. However, Rokita submitted his answer just under two hours after the complaint was filed.
And, on pages 25 and 26 of his 30-page response, Rokita makes his admission. His response states the comment he made July 13, 2022, could “reasonably be considered” to have violated Professional Conduct Rules 3.6(a) and 4.4(a). These two rules, respectively, prohibit attorneys from making public statements that could prejudice a proceeding or taking actions that are only meant to embarrass or burden another person.
“I was actually stunned to see that,” Margaret Tarkington, a law professor at the Indiana University Robert H. McKinney School of Law, told The Indiana Citizen about Rokita admitting to rules violations.
Tarkington was one of several professors at IU McKinney and the Indiana University Maurer School of Law who signed public letters condemning the attorney general’s remarks regarding Bernard.
Rokita’s admission in his response to the charges contains a qualification that if his disciplinary case does go to trial, he demands that the commission prove the alleged rule violations.
Attorneys React
Some attorneys note that Rokita’s acknowledgement that his comments crossed the line along with his substantive response filed mere hours after the complaint seem to suggest his lawyers and the commission have been working on a resolution to this matter.
Indeed, one lawyer, speaking on the condition of anonymity, thought the disciplinary commission’s complaint was “light” and that more violations of the rules cited could have been included. Rokita made multiple statements, particularly after his office filed the complaint against Bernard with the Medical Licensing Board of Indiana, but the disciplinary commission focused on one statement as a violation.
Don Lundberg of Lundberg Legal, who has represented attorneys before the disciplinary commission, including former Indiana Attorney General Curtis Hill, said this is “intelligent speculation” that an agreement was discussed between the parties.
But, Lundberg continued, such discussions are not unusual. The accused and the commission often explore the possibility of crafting a resolution, which can be submitted to the court simultaneously when the complaint is filed. As part of the negotiation process, the commission shares the charges with the attorney’s counsel, alerting the accused to what is coming.
Typically, a defendant does not file a response so quickly, Lundberg said. But, in doing so, Rokita was able to “get the counternarrative into the public record almost coincidentally with the charges being filed.”
The next step in the disciplinary process will be the appointment by the Indiana Supreme Court of a hearing officer. If the parties do not reach an agreement, the matter will proceed to a hearing, which could be a trial or, if the facts are not in question, the parties would only present their arguments for the appropriate sanction.
At the conclusion, the hearing officer could either recommend a sanction if Rokita is found guilty, or find that the commission did not prove its case. Then the Indiana Supreme Court will decide whether to accept the hearing officer’s findings and what, if any, sanction is to be imposed.
Attorneys do not expect Rokita will be disbarred. They speculate he likely will be given a public reprimand or have his law license suspended for 30 days with automatic reinstatement.
One attorney, speaking anonymously, said Rokita should have his license suspended longer and without automatic reinstatement. His alleged misconduct goes to the heart of his professional responsibilities and he has shown no remorse, the attorney said.
Which rules apply?
Rokita flatly denied the commission’s third allegation that he also violated rule 8.4(d) by engaging in conduct that was prejudicial to the administration of justice. Specifically, the commission asserted Rokita intentionally made public statements and/or directed others to issue public statements about the investigation of Bernard.
Tarkington said a potential problem with the rule 3.6 violation is that enforcement can appear to be selective. Many states do not strictly enforce it, even though attorneys often make public comments that technically violate the rule but are not disciplined. Therefore, when the rule is invoked, it can seem as if a person is being singled out.
Still, Tarkington “absolutely believes” that rule 3.6 should be strictly applied to prosecutors.
“Prosecutors wield immense power and, also, they have access to the most damning information possible about people,” Tarkington said. “To publish that, especially before charges have been brought, can do extreme damage to people’s reputational interests, to their safety.”
Tarkington said she was surprised the commission did not charge a rule 3.8 violation. She pointed to section (f), which mandates a prosecutor in a criminal case “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
“I actually thought that one was just absolutely spot on,” Tarkington said.
Lundberg agreed with Tarkington that Rokita had violated rule 3.8. He also thought it was “an interesting strategic choice” by Rokita to “give something away” by conceding that he could have violated two of the attorney conduct rules.
“One could argue it was earlier than maybe one would have expected,” Lundberg said of the admission.
‘Vindicating vulnerable children’ or ‘flame fanning’?
Along with filing a response in court, Rokita also issued a press release defending his actions and vowing to continue the work he sees as protecting families. He boasted that as attorney general, he is “beating back the culture of death, grievance and transanity being pushed by radicals in workplaces, schools, media and government.”
He then took another swipe at Bernard, saying his work “certainly includes vindicating vulnerable children (our most precious gift) for having their privacy rights unlawfully violated – without consent – by healthcare providers to further their political agenda and their ‘bottom line.’ I won’t stop in this and my other work.”
Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky (PPGNHAIK) fired back.
“Rokita’s aggressive anti-abortion antics, in pursuit of five minutes of fame, have landed him the attention he finally deserves: charges filed by the Indiana Supreme Court Disciplinary Commission for misconduct in relation to his attacks against Dr. Bernard,” Rebecca Gibron, CEO for PPGNHAIK, said in a statement. “Rokita’s flame fanning at the expense of a 10-year-old rape survivor has hurt Hoosiers long enough, now he’s the one getting burned.”
Tarkington explained her concerns about Rokita’s comments during his Fox interview. Before any charges were filed against Bernard, Rokita asserted that the OB/GYN had, in the past, failed to file the required medical reports with the state.
That, Tarkington said, was “just straight up false.”
Later in the same Fox News interview, Rokita claimed, “And then this girl was politicized – politicized for the gain of killing more babies.”
Tarkington saw that as an “outrageous statement” – particularly for the state’s top lawyer to make.
“The job of the attorney general is you are the primary state person that is in charge of executing the law in terms of enforcement, which include protecting people’s rights. You are enforcing the law, that’s your job,” she said. “Your job is not to get on Fox News and make a name for yourself and create public condemnation of someone who you don’t even know the facts about yet.”
Some attorneys, who spoke anonymously, said Rokita’s press release after the complaint was filed could bring him a stiffer sanction if the case goes to trial. The disciplinary commission, the attorneys said, might argue to the Indiana Supreme Court that Rokita’s comments show he has a “lack of insight,” or is not remorseful about his conduct.
However, Lundberg does not think that Rokita’s post-complaint statements could hurt him in the disciplinary process.
“One hopes that there is room in the disciplinary process for vigorous advocacy,” Lundberg said. “In other words, that the playing field isn’t so tilted that a respondent feels cowed into not strongly making arguments. The adversary system works because of strong arguments on both sides.”
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
