Cardoza-Jones: Ethical questions raised by the conduct of Indiana AG Rokita

After media reports that Dr. Caitlin Bernard of Indiana provided abortion services to a 10-year-old rape victim who could not obtain such services in Ohio, Indiana Attorney General Todd Rokita made public statements that he would investigate Bernard’s licensure, including whether she failed to timely report the procedure or violated HIPAA. He said Bernard was an “abortion activist acting as a doctor with a history of failing to report,” (See “Doctor in 10-year-old’s abortion case takes legal step against Indiana AG,” The Washington Post, July 19, 2022). Despite a lack of supporting evidence, and even in the face of evidence refuting his accusations, Rokita did not correct his false statements and expressed his intent to continue the investigation. (See “Former IU dean asks Supreme Court to investigate Todd Rokita after comments about doctor,” Indianapolis Star, July 18, 2022, updated July 19, 2022.)

The reported evidence suggests Rokita may have violated the following Indiana Rules of Professional Conduct:

Rule 3.6: Trial publicity

(a) A lawyer who is participating … in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.; (d) A statement referred to in paragraph (a) will be rebuttably presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding when it refers to that proceeding and the statement is related to: (1) the character, credibility, reputation or criminal record of a party … . (Emphasis added.)

Emerging evidence revealed that Bernard had complied with relevant professional requirements. See Washington Post article. Rokita’s attacks on her professional character, even if true, are rebuttably presumed to have a substantial likelihood of materially prejudicing Bernard in Rokita’s ongoing investigation and in any resulting adjudicative proceeding.

In In re Litz, 721 N.E.2d 258 (Ind. 1999), an attorney wrote a letter published by newspapers stating that his client committed no crime and should not be retried. “We view the respondent’s actions as a purposeful attempt to gain an unfair advantage in retrial of his client’s case. … His public comments were inappropriate because they threatened or in fact impinged the prospect of a fair trial for his client.” Id. at 260. Similarly, Rokita’s actions may be deemed an attempt to gain an unfair advantage in any action against Dr. Bernard, threatening the prospect of a fair adjudication.

Rule 3.8: Special responsibilities of a prosecutor

The prosecutor in a criminal case shall: (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused … . (Emphasis added.)

Even though not a typical “prosecutor,” Rokita has prosecutorial responsibilities. The AG’s website states: “Our dedicated team represents the State … in almost every substantive area of the law [including] bringing actions to enforce state statutes and regulations … .”

The Indiana Supreme Court addressed this prosecutorial role in an action against a former Indiana AG: “[Respondent argues] that an Attorney General should be treated differently than a prosecutor … because the Attorney General in most instances does not directly charge crimes. But Respondent does not explain how exercising the broad statutory authority of the office to assist prosecutors and crime victims, and defending convictions on appeal on behalf of the State, are meaningfully different in terms of the administration of justice than charging and prosecuting those crimes on behalf of the State … . … In fact, the Attorney General’s role in the administration of justice … greatly exceeds that of a county prosecutor. … Put simply, the Attorney General is the ‘chief legal officer of the State of Indiana.’ In short, the Attorney General is an ‘officer charged with administration of the law’ at least to the same extent as a prosecutor, if not substantially more so.” In re Hill, 144 N.E.3d 184, 193-94 (Ind. 2020) (finding violation of Rule 8.4(d); emphasis added; citations and internal quotations omitted).

“A prosecutor’s opinion of guilt is particularly likely to create prejudice, given that his or her words carry the authority of the government and are especially persuasive in the public’s eye.” In re Brizzi, 962 N.E.2d 1240, 1246 (Ind. 2012) (internal quotation and citation omitted).

Rokita’s inflammatory extrajudicial accusations against Bernard in the media have heightened public condemnation of her. Rokita’s statements have even resulted in a kidnapping threat against her daughter. (See “Daughter of doctor who gave 10-year-old an abortion faced kidnapping threat,” The Guardian, July 15, 2022).

Even if Rule 3.8 does not technically apply to an attorney general, it informs the scope of an attorney general’s duties under Rule 8.4(d), discussed below.

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.

Comment to Rule 8.4: [4] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. (Emphasis added.)

Rokita appears to have engaged in conduct that involves dishonesty and misrepresentation and that is prejudicial to the administration of justice. His abuse of public office suggests that he is incapable of fulfilling his professional role as a lawyer.

Conclusion

Rokita’s apparent multiple violations of the Rules of Professional Conduct while holding the highest legal office in Indiana is a matter of grave concern.

As an aggravating circumstance, Rokita appears to have been motivated by a selfish desire to further his political ambitions. See In re Smith, 991 N.E.2d 106 (Ind. 2013) (attorney disbarred for revealing confidential information about former client in a book; aggravating circumstances included selfish motivation for monetary gain).

Of course, the attorney general should rigorously investigate and enforce licensure matters within his purview. But he must do it within the bounds of his ethical obligations as the chief legal officer of this state. The public reports of his conduct suggest that he has failed in this duty.•

__________

Paula Cardoza-Jones retired from full-time law practice in 2016 after 20 years as a staff attorney at the Indiana Supreme Court. She currently performs volunteer legal services for the Neighborhood Christian Legal Clinic. Opinions expressed are those of the author.