‘Illegal alien’ remark leads to attorney’s suspension; case involves embattled judge

Representing a father in a child visitation dispute, a Martinsville lawyer’s letter to opposing counsel alleging the mother was an illegal alien resulted in a 30-day suspension.

The judge who served as the Disciplinary Commission’s hearing officer in attorney Joseph B. Barker’s case separately is facing a suspension request for charges alleging she, too, made unprofessional remarks, among other things. One of the 45 counts against that judge concerns a charge that was she almost a year late with findings in this disciplinary case.

The Indiana Supreme Court on Friday posted an order suspending Barker for 30 days. According to the order, Barker sent the attorney and presiding judge in a divorce case a letter in 2009 that read:

“[Father] told me this week that he has only seen his baby … one day all year. Your client doesn't understand what laws and court orders mean I guess. Probably because she's an illegal alien to begin with.

“I want you to repeat to her in whatever language she understands that we'll be demanding she be put in JAIL for contempt of court.

“I'm filing a copy of this letter with the Court to document the seriousness of this problem.”

Barker violated Rules of Professional Conduct 4.4(a) and 8.4(g), the court ruled.

“Respondent argues that it was legitimate advocacy to connect Mother’s alleged violation of immigration laws with her violation of Father’s court-ordered visitation rights. However, regardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden Mother,” Chief Justice Brent Dickson wrote for the court.

The order cited Barker’s lack of disciplinary history as a mitigating factor, but “the Respondent’s misconduct is aggravated by the fact that he has no insight into his misconduct, he has not apologized to Mother, and he has substantial experience in the practice of law. Under these circumstances, the Court concludes that a period of suspension is required.”

Barker’s suspension is effective Oct. 14, and he will be automatically reinstated. Costs of the proceeding are assessed to him.

The verified complaint against Barker was filed in August 2009, and Marion Superior Judge Kimberly Brown was appointed hearing officer a month later. Brown’s findings and recommendations were filed in June of this year.

Brown is the subject of a 45-count complaint from the Judicial Qualifications Commission replete with allegations of conduct that she treated public defenders, clerks’ office staff and some private attorneys in “a rude and discourteous manner and created “a hostile environment for attorneys, court staff, clerks, and other court officials.” Among the most serious charges facing Brown are accusations she wrongly jailed at least nine defendants for 1 to 22 days, among other things.

But one of the counts concerns Barker’s case, noting that disciplinary counsel asked Brown in December 2012 when findings might be submitted to the court. Barker’s hearing had taken place more than seven months earlier.

“On April 3, 2013, another attorney employed with the Disciplinary Commission requested a status conference on the matter, which (Brown) never attended,” according to the charges against her.

An attorney discipline hearing officer is required by rule to file a report with findings and conclusions within 30 days of the conclusion of the hearing, according to the charges against Brown. She “did not issue findings until June 7, 2013, more than thirteen (13) months after the hearing was conducted,” the charges say.