Rokita calls for changes to lawyer conduct rules

Indiana Attorney General Todd Rokita is calling for new safeguards to protect himself and other lawyers from frivolous and politically-motivated disciplinary complaints and says a chair of the Indiana Supreme Court Disciplinary Commission showed bias by endorsing his opponent in the runup to the Nov. 5 election.

The state’s high court reprimanded Rokita last year over comments he made about a doctor who performed a medical abortion on a 10-year-old, and he was dogged throughout the campaign by reports of additional conduct complaints being filed against him.

But the Republican incumbent easily won election to a second term over Democrat Destiny Wells.

In a news conference the day after the election, Rokita characterized the series of complaints as an attack on his free speech rights by political opponents and called for changes in the state’s disciplinary rules for attorneys regarding political speech.

“This is all about speech,” Rokita said. “This isn’t about stealing anybody’s money. This isn’t about groping. This isn’t about other physical acts or anything like that. This is about, in my case, political speech. This is about policy speech. This is about me taking on issues and saying things that they don’t like — they being those who want to weaponize our Indiana Supreme Court, who want to create this lawfare.”

Indiana Lawyer was not notified of Rokita’s post-election news conference, in which he laid out priorities for his new term, including lawyer discipline reform. But Rokita’s office provided IL with a video recording of the event, where he also pledged to fight illegal immigration, investigate hospital monopolies that drive up costs and defend Indiana’s near total abortion ban.

At that news conference, Rokita also accused a chair of the disciplinary commission of endorsing his Democratic opponent.

“Do you think he’s got some bias? Yes, of course,” Rokita said.

Rokita’s office did not respond to repeated requests to name the chair he was referring to.

But Wells acknowledged that former disciplinary chair Bernard Carter, a Democrat, did endorse her candidacy for attorney general.

She said he wasn’t the chair at the time of the endorsement but was a member of the disciplinary commission. The commission’s current chair is Republican stalwart Peter Rusthoven.

Carter, the Lake County prosecutor, did not immediately respond to IL’s request for an interview, which was left with his office.

Kathryn Dolan, spokeswoman for the Indiana Supreme Court, said she could not speak on what disciplinary commission members do outside of their commission duties.

Disciplinary fight

The events leading to Rokita’s dustup with the disciplinary commission began in July 2022 when he made politically-charged comments about an Indiana physician to Fox News.

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.”

Two people also filed complaints with the commission regarding Rokita’s defiant response to the reprimand.

The complaints were 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.

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.

According to The Indiana Citizen, a civic-minded news site, 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. The status of that complaint also is unknown.

While Rokita considers the flurry of complaints an effort to politically weaponize the disciplinary process, Cardoza-Jones disagrees.

She noted in an email to IL that any grievance against an attorney can’t go anywhere without action by the disciplinary commission and the state’s supreme court.

And she added that all five members of the court were appointed by governors of Rokita’s own party and that all commission members were appointed by the court.

While working for the court for nearly 20 years, she said she “never witnessed any Justice or any member of the Commission make any decision for political or partisan reasons.”

Groth declined to comment on Rokita’s characterizations.

Complicating government transparency on these matters is the privacy under which the Indiana Disciplinary Commission operates.

The panel 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.

Proposed reforms

Rokita said he has filed proposed disciplinary rule changes with the commission to protect the First Amendment constitutional right of free speech for attorneys and judges.

His office did not immediately respond to a request for a copy of those proposed rule changes. The disciplinary commission said it considers the document to be private.

Rokita argues that lawyers need to be able to speak about political issues when defending a client. He also criticized the secrecy of the commission’s meetings and said the disciplinary process needs to be more transparent.

“They’re not accountable to anybody,” Rokita said of the disciplinary commission.

Indiana University Robert H. McKinney School of Law Professor Margaret Tarkington said that while she believes lawyers in general should have more free speech, Rokita’s role as a prosecutor confines him.

“When he’s talking about basically, judges and prosecutors should be able to speak about cases, that undermines their role in the justice system, and so they actually should not have a First Amendment right in that regard, and their rights actually are tied to their role,” Tarkington said.

She explained that making statements about someone before a conviction undermines their constitutional right to a fair trial and that they are innocent until proven guilty.

“Prosecutors and judges should not be talking when they’re administering cases. They should not be talking about those cases in ways that undermines people’s constitutional rights,” Tarkington said. “Judges should not be talking about them at all because that totally undermines impartiality. But the prosecutor cannot say anything that would undermine the presumption of innocence and should not be harming the reputations and heightening public condemnation of people who are accused.”

However, she added that Rokita’s call for lawyers to have more freedom to criticize a governing body they interact with seems appropriate.

“I think that you should be able to criticize the disciplinary commission. Actually I think this is an area where you should have First Amendment rights to be able to say, ‘look, the disciplinary commission has these problems, and we should investigate it,’” Tarkington said.

For now, Rokita’s proposed reforms are in the hands of the Indiana Supreme Court Rules Committee.

But if he doesn’t get what he wants from the committee, he could take the matter to the Indiana General Assembly when it reconvenes in January.

Rokita’s office isn’t saying what his next step might be. His spokesman Ben Fearnow said to stay tuned.•