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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowTodd Rokita is the attorney general of Indiana. According to the AG’s website, his job includes investigating all complaints against those licensed by a health care board under the Indiana Professional Licensing Agency.
Dr. Caitlin Bernard provided abortion services in Indiana to a 10-year-old rape victim who was unable to obtain such services in Ohio. In July 2022, the AG’s office received complaints regarding Bernard, and Rokita opened an investigation.
“(With limited exceptions,) all complaints and information pertaining to the complaints (about a doctor) shall be held in strict confidence until the attorney general files notice with the board of the attorney general’s intent to prosecute the licensee.” Indiana Code § 25-1-7-10(a) (emphasis added).
The AG’s office filed a complaint against Bernard with the Medical Licensing Board on Nov. 30, 2022. Meanwhile, Rokita had made public statements about Bernard, including: “(Bernard is an) abortion activist acting as a doctor — with a history of failing to report. … This is a horrible, horrible scene. Caused … by Marxists, socialists, and those in the White House … who want lawlessness at the border. And then this girl was politicized … for the gain of killing more babies. All right, that was the goal. And this abortion activist is out there front and center.”
On Sept. 18, the Disciplinary Commission filed a complaint against Rokita alleging violations of the following Indiana Rules of Professional Conduct:
• Count 1: Rule 3.6(a): “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make any 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.” (Emphasis added.) Such a statement is rebuttably presumed to violate this rule if it relates to the character, credibility or reputation of a party. Rule 3.6(d).
• Count 2: Rule 4.4(a): “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person … .”
• Count 3: Rule 8.4(d): “It is professional misconduct for a lawyer to ‘engage in conduct that is prejudicial to the administration of justice.’” (Emphasis added.) Comment 4 to this rule states: “Lawyers holding public office assume legal responsibilities going beyond those of other citizens.”
Curiosity one: What about other potential charges? Counts 1 and 2 allege that only this statement violated Rules 3.6(a) and 4.4(a): calling Bernard an “abortion activist acting as a doctor — with a history of failure to report.” But what about Rokita’s numerous other inflammatory accusations against Bernard, quoted in part above?
Count 3 is based solely on the timing of Rokita’s pre-referral statements in violation of the statute, not their inflammatory tone.
Moreover, at least one accusation — that Bernard had a history of failing to make required reports — appears to be false, in arguable violation of Rule 8.4(c), prohibiting conduct involving misrepresentation.
What about other seemingly supportable charges? What could explain this lightweight complaint?
When the parties have negotiated a conditional agreement to resolve a disciplinary matter (subject to approval by the Supreme Court) before a complaint is filed, the complaint will likely mirror what the respondent has agreed to admit rather than including every allegation and violation that might be included. Typically, the complaint is filed and the CA submitted to the court at the same time, but only the complaint appears on the public chronological case summary. There is no need for an answer. The next anticipated entry on the CCS is court approval of the CA. See Admission and Discipline Rule 23(12.1)(b).
But here, Rokita immediately filed an answer to the complaint.
Curiosity two: How could Rokita file his answer less than two hours after the complaint was filed? The Complaint was filed 9:12 am. At 11:09 a.m., Rokita filed a 30-page answer chock full of legal arguments. Rokita almost certainly had a copy of the complaint well before its filing for such a head-spinning turnaround response. But why?
When the parties submit a CA when filing a complaint, the respondent would know what the complaint contains because it typically mirrors the CA. But Rokita is not agreeing with the charges in the complaint. He concedes calling Bernard an abortion activist acting as a doctor with a history of failure to report “could reasonably be considered to have violated” Rules 3.6(a) and 4.4(a). “(N)evertheless, should a hearing be necessary, Respondent demands strict proof thereof.” He flat-out denies violating Rule 8.4(d).
Did the commission file a negotiated lightweight complaint without submitting a finalized CA? Was a CA submitted with the complaint, but Rokita nevertheless filed an answer contradicting it? Would such a ploy scuttle the chance of the court approving a CA?
Curiosity three: Does Rokita understand an AG’s ethical duties? Although Rule 3.8 (responsibilities of a prosecutor) may not apply directly to an AG, the Supreme Court holds an AG to similar heightened ethical obligations: “(T)he Attorney General is the ‘chief legal officer of the State of Indiana’ … ‘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) (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 was responsible for ensuring the integrity and fairness of the proceedings against Bernard. Yet Rokita argues that Bernard was not entitled to this protection during the proceedings because in the end, the board (in a widely questioned decision) found that Bernard had violated her patient’s privacy rights. This is backward. It’s like arguing a prosecutor is excused from tainting a prosecution if the defendant is eventually convicted in the tainted proceedings.
What does Rokita want?: Reelection. When Rokita filed his answer, he quoted from it and linked to it on the AG’s website, declaring: “I am seeking re-election.” He is “beating back the culture of death, grievance and transanity being pushed by radicals in workplaces, schools, media and government.” He is fighting to prevent children from having their privacy rights violated “by healthcare providers to further their political agenda and their ‘bottom line.’”
Final curiosity: In today’s political environment, could a highly contentious disciplinary proceeding and imposition of sanctions actually enhance Rokita’s political ambitions?•
–Paula Cardoza-Jones
Retired Indiana Supreme Court staff attorney, including two years at the Disciplinary Commission; current Indiana Legal Services volunteer
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