A ‘messy’ question: Who should pay for Rokita’s defense in discipline case?

A three-count disciplinary complaint against Indiana Attorney General Todd Rokita has brightened the spotlight once again on an ongoing back-and-forth dispute between him and an Indianapolis doctor who performed an abortion on a 10-year-old Ohio girl.

But the Indiana Supreme Court Disciplinary Commission’s complaint, filed Sept. 18, has created a secondary issue — a question with an unclear answer:

Who should pay for Rokita’s defense counsel?

As part of his defense, Rokita has retained Schaerr Jaffe LLP, a firm based in Washington, D.C. The firm describes itself online as a “boutique law firm specializing in high-profile trial and appellate litigation.”

Schaerr Jaffe also worked on the administrative case involving Dr. Caitlin Bernard, who was reprimanded and fined after the Indiana Medical Licensing Board determined she violated patient privacy laws by talking publicly about the abortion she performed on the 10-year-old rape victim.

Indiana Lawyer asked the Attorney General’s Office if Schaerr Jaffe’s work on Rokita’s discipline case is being conducted under an existing contract signed in 2020.

The office answered a question more generally about the use of outside counsel, saying its mission is to “defend all people in Indiana, and due to our workload, we are happy to welcome exceptional attorneys to our team.”

But the office appeared to confirm to State Affairs that the public is picking up the tab for Rokita’s defense.

“This is a complaint against the official duties of the Attorney General and is an attack against his official capacity, so this is paid by the office,” the office told State Affairs.

‘That’s a pretty high burden’

Laura Iosue was a staff attorney with the Disciplinary Commission for 13 years until 2013, when she joined the Attorney General’s Office as section chief of medical licensing, a post she left in 2020.

A central question, Iosue said, is whether Rokita’s statements on Fox News and other venues about his office’s investigation into Bernard fit within the scope of his duties as attorney general.

Iosue also wondered if potentially prohibited conduct — violating confidentiality requirements, in this case — can ever be within the scope of the attorney general’s duties.

“That’s a pretty high burden for him to overcome,” she said, while also noting that she doesn’t think it’s “insurmountable.”

Iosue also pointed out the symmetry in the rules governing the investigations into Bernard and Rokita, where both, in theory, were confidential through the investigation.

Seth Pruden, also a former staff attorney for the Disciplinary Commission for 26 years, said he doesn’t think the question of who’s supposed to pay in this case has ever been answered by Indiana courts.

On one hand, Pruden said, the public could have an interest in defending the law license of someone voted into office. But on the other hand, the discipline case is about Rokita’s obligations as a lawyer.

It’s a “messy” situation, Pruden said.

Pruden said his personal opinion is that it is “not appropriate” for the public to bear the costs.

James Bopp Jr. of The Bopp Law Firm in Terre Haute isn’t involved in the discipline case but has represented the Attorney General’s Office — including in a current case involving Indianapolis Public Schools.

Bopp said he thinks the office is right to use public funds because Rokita was talking about his office conducting an investigation.

“He was talking about what the office was doing and he was doing as attorney general,” Bopp said.

Bopp added that he believes that would be true even if it’s determined Rokita did violate Rules of Professional Conduct.

“You did that as an employee,” he said, “right or wrong.”

Indiana Lawyer also asked the Indiana Office of Inspector General to weigh in, but the office said in a statement it doesn’t comment on matters that haven’t resulted in a formal advisory opinion.

What the contract says

The Attorney General’s Office’s current contract with Schaerr Jaffe was signed in February 2020 under former Attorney General Curtis Hill, who also faced discipline charges during his time in office and is now seeking the Republican nomination for governor.

The contract referenced a 2019 federal lawsuit filed by the American Civil Liberties Union of Indiana on behalf of Bernard, who was challenging a new state abortion law. The contract referred to it simply as the “Bernard Case” and said Schaerr Jaffe was to provide services “particularly with respect to expert witnesses and the drafting of their declarations.” Total remuneration was not to exceed $300,000.

The contract has been amended six times, mostly to adjust the terms of payment — until December 2022, when an amended version of the contract under Rokita broadened the scope of services.

The amendment said Schaerr Jaffe was to provide services for a lawsuit filed in November 2022 by Bernard and a fellow physician, Dr. Amy Caldwell, in an attempt to block the Attorney General’s Office from investigating abortion providers. They later voluntarily dismissed the complaint.

The amendment also included the addition of a lawsuit brought by Indiana University Health, in which Bernard was an intervening party, against Rokita. That case was also dismissed.

Aside from specific cases, the amended version of the contract said Schaerr Jaffe would provide services on “any licensing investigations or complaints against Bernard, including litigation arising out of that investigation,” as well as “work on any other current or future litigation related to any of the above referenced matters” and “all other matters or duties assigned by State and agreed to by Counsel.”

The most recent amended version was signed Aug. 25, about three weeks before the Indiana Supreme Court Disciplinary Commission filed its complaint against Rokita related to his comments about Bernard.

Outside counsel becoming more prevalent

Former Democratic Indiana Attorney General Jeff Modisett is now a law professor at the UCLA School of Law in Los Angeles and said use of outside counsel is becoming more prevalent — but not necessarily for nefarious reasons.

Hiring outside counsel, Modisett said, could be beneficial because it allows the staff in an attorney general’s office to stay on top of more high-profile cases.

Usually, he said, there’s doesn’t seem to be a “political price” for hiring outside counsel.

Another reason the use of outside counsel seems more prevalent now, Modisett said, is because other state agencies have lawyers they like to work with.

The Indiana Department of Child Services, for example, has contracted with Barnes & Thornburg at least three times since 2014, state records show.

The Governor’s Office contracted with Indianapolis firm Lewis Wagner in 2021 to represent the state when Gov. Eric Holcomb successfully sued the Indiana General Assembly over an emergency powers law.

And the Indiana Department of Education has a contract with Lafayette law firm Reiling Teder & Schrier LLC through September 2026 to conduct mediation sessions to resolve disputes related to special education and related services.

Modisett, who was attorney general from 1997-2000, said he recalls using outside counsel only once for a large tobacco case.

“I felt it was mandatory because our office didn’t have the budget to handle a case of that magnitude without having help from outside counsel to foot the bill,” he said.

Modisett, now in his third year at UCLA, said the rise in outside counsel isn’t necessarily good or bad. It depends on the context, he said.

Perception also matters, Modisett said, because it wouldn’t be good for the public to think their attorney general has delegated his or her authority.•