Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Indiana Attorney General Todd Rokita on Tuesday released the details of his proposed rule changes for attorney discipline, calling on the Indiana Disciplinary Commission to quickly dismiss politically motivated complaints against attorneys and follow the same impartiality guidelines as judges.
The proposals escalate ongoing differences Rokita has had with the disciplinary commission since he was reprimanded by the Indiana Supreme Court for comments he made in 2022 about a doctor who performed an abortion.
He also became the subject of at least three more disciplinary complaints that dogged him throughout his re-election campaign last year and that he considers purely political.
“This judicial process is being hacked by activist attorneys whose candidates and issues continue to lose at the ballot box,” Rokita said in a statement to the Indiana Lawyer. “They are attorneys—attorneys who are trying to silence the large number of voters who hired a lawyer to speak for them and their policies. These are lawyers who are weaponizing a non-public agency of the judicial system.
“Whether the investigations of the Attorney General that the Rules allow to be leaked are going to be continued is unknown, as is a clear understanding of exactly what it’s all about,” Rokita added. “One thing that is clear is that the AG did nothing dishonest, illegal, or even wrong, and he will continue to fight for the people of this state no matter how much the Left hates it.”
Rokita generally suggested some disciplinary rule changes at a news conference immediately after his re-election in November, where he called for the commission to protect the free speech rights of attorneys. He did not release his written rule proposals until Indiana Lawyer filed a formal request for the records under the state’s Access to Public Records Act. The proposals were submitted to the Indiana Supreme Court’s rules committee on Nov. 8.
His proposed rule regarding politically motivated complaints is a response to grievances filed by Bill Groth, a labor union attorney who was named the Indiana Democratic Party’s activist of the year in 2018, and Paula Cardoza-Jones, who worked as a staff attorney for the state supreme court’s administration office and the disciplinary commission.
Last year, both provided IL with copies of letters they received from the commission to let them know the status of their complaints.
The letters, addressed to Rokita, were short and stated the commission docketed their grievances for further investigation.
The current status of the complaints is unknown. The commission considers them private matters unless an attorney has been found guilty of misconduct which warrants discipline.
Groth filed another complaint against Rokita shortly after an April news conference in which the attorney general announced his office’s official opinion that terminated pregnancy reports filed with the Indiana Department of Health should be considered public records.
The department had declined to release them, citing patient privacy concerns.
Groth’s complaint asserted Rokita violated the state’s rules for professional conduct for attorneys by issuing an opinion about the pregnancy reports when the health department had not asked for any legal advice on that matter.
The Indiana Citizen reported that Groth also accused Rokita of misconduct for suggesting that members of the public could sue the department if they are not allowed access to the documents.
James Ammeen of Ammeen Valenzuela Associates in Indianapolis has represented Rokita in the commission grievances and said they had been working on the proposal for revised disciplinary rules for several months. He echoed Rokita’s past statements that the proposed revisions are about free speech and transparency.
Rokita’s proposal would require that disciplinary complaints be based on personal knowledge of the situation, not politics.
“Most were filing their grievance based on the politics of abortion and with no personal knowledge of any of the facts,” Ammeen said.
Rokita’s call for impartiality stems from a situation in which Lake County Prosecutor Bernard Carter, a member of the disciplinary commission and its former chair, endorsed Rokita’s Democratic challenger Destiny Wells while complaints regarding Rokita were potentially pending before the commission.
“I was outrageously shocked that I got copies of invitations to meet and greets and fundraisers for Destiny Wells with Bernie Carter’s picture at the time that he’s chairman of the disciplinary commission and these investigations of Groth and Cardoza complaints are going forward,” Ammeen said.
Last month, Carter did not immediately respond to IL’s request for an interview on the situation.
Rokita’s proposal would have Indiana Disciplinary Commission members be bound by the state’s rules of judicial conduct. Those rules prohibit judges from publicly expressing their political views, endorsing candidates or making political contributions.
Rokita’s letter to the court also pointed to the commission’s current chair Peter Rusthoven, questioning how he could be impartial when he authored an article for Politico/Real Clear Politics endorsing the removal of President-elect Donald Trump from the ballot while investigating Rokita for filing the state’s amicus brief in the U.S. Supreme Court endorsing Trump’s position on that same issue.
“It not only chills the speech and actions of this legal officer, but every attorney who believes that a presidential candidate should not be removed from ballots by state courts,” Rokita wrote.
Ammeen said he thinks most lawyers would agree that an agency of the supreme court should have the appearance of impartiality at all times.
Rokita’s letter also provides more detail on his proposal to allow for the quick dismissal of grievances that merely accuse lawyers of political speech.
“The Disciplinary Commission shall not consider political speech or political advocacy as grounds for investigating a grievance or for rendering attorney discipline,” Rokita’s proposed rule change states. “The Commission shall dismiss any such grievances on its own accord within thirty (30) days. This rule does not extend to advocacy that has been determined vexatious by an Indiana court. For purposes of this subsection, ‘political speech or political advocacy’ means ‘words or conduct intended to marshal public support for an issue, position, or candidate.’”
Ammeen said people can certainly debate whether or not something is purely political in nature.
“But there should be a defense for an attorney who draws a grievance because he or she spoke on an issue,” Ammeen said. “It’s particularly important for lawyers who are government officials, because it could impact their ability to execute the duties of their office, and it can create confusion and waste within the office, if things turn to a situation where there’s an ongoing investigation.”
He said the proposal is not just about Rokita and his experience with the commission.
“We think that most lawyers would agree that if a grievance is going to be filed against the lawyer, that the grievant should have personal knowledge of the facts that are stated in the grievance,” Ammeeen said.
Ammeen said the grievance investigation process should mirror that of a civil procedure.
“We want a fair process,” Ammeen said.
He noted that the commission operates confidentially. But at a minimum, he said, Rokita believes the commission should publicly report how it spends its money.
“It should submit a report on the amount of money expended and total time spent investigating and prosecuting the requests for investigation, the grievances that get filed,” Ammeen said. “We believe that this report shouldn’t identify any particular lawyer by name in any way, but the reporting should be done by a docket number, and that the Supreme Court should make public the operating budget of the disciplinary commission and their expenditures.”
Ammeen said he expects the review of Rokita’s proposal to take a year. The Indiana Supreme Court’s rules committee will meet later this month and Ammeen expects it to discuss the proposed rule change.
Delaware Circuit Court Judge Marianne Vorhees, the rules committee chair, did not immediately to respond to IL’s request for comment on the proposal.
If the committee decides to proceed with Rokita’s proposal, it could solicit public comment on the issue by April 1, at the earliest. The comment period is open for 30 days and occasionally is extended. Then the committee would review the comments and submit a final proposal to the Indiana Supreme Court justices for consideration.
Rule amendments typically go into effect on Jan. 1 of each year, unless the court says otherwise.
Disciplinary odyssey
Rokita’s journey with the disciplinary commission started after he made politically-charged comments about an Indiana physician to Fox News in July 2022.
Rokita called OB-GYN Caitlin Bernard an “activist acting as a doctor” and said his office would be investigating her.
Bernard performed a medical abortion on a 10-year-old rape victim, who was forced to come to Indiana for the treatment because her home state of Ohio prohibited it at that time.
Rokita was publicly reprimanded by the Indiana Supreme Court for the comments, which the court said had “no substantial purpose other than to embarrass or burden” Bernard.
The court later unsealed the conditional agreement with Rokita that contained the reprimand.
That decision came after the state disciplinary commission complained that Rokita’s unrepentant statements following the reprimand were inconsistent with what he committed to in the agreement.
Rokita has noted that a separate investigation by the Indiana State Medical Licensing Board agreed with him, by reprimanding Bernard for a patient privacy violation.
However, it rejected other issues raised by Rokita, with the board president calling Bernard a “good doctor.”
The Indiana Disciplinary Commission consists of seven lawyers and two non-lawyers and employs a staff to investigate and prosecute cases.
Under Indiana law, formal complaints of alleged misconduct filed in writing with the commission are kept confidential to protect attorneys from unwarranted allegations. However, there is nothing that prevents accusers from airing their complaints publicly.
The commission investigates the complaints. They only become public if the panel finds the claims to be warranted, issues formal charges and refers the matter to the Indiana Supreme Court.
According to the Indiana Supreme Court’s annual report for the 2023-2024 year, the commission received 1,499 complaints against attorneys from the public during that 12-month period. Of those complaints, 1,184 were dismissed.
Attorneys who are found to have engaged in misconduct can receive a range of penalties from a private caution to a public reprimand to disbarment.
Please enable JavaScript to view this content.