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By Marilyn Odendahl

The Indiana Citizen

January 5, 2024

In a combative 16-page response filed Tuesday, Indiana Attorney General Todd Rokita says he does not object to the release of the conditional agreement that resulted in his public reprimand, but he accuses the Indiana Supreme Court Disciplinary Commission of “caving to political pressure” and “being used to further a political agenda.”

He uses his verified response to defend his actions after he was reprimanded. He says he “accepted discipline and viewed the situation as an opportunity to learn and improve as an attorney;” he “always has spoken truthfully about the disciplinary matter;” and he is “not responsible for the alleged ‘confusion’ flowing from a false narrative” about the admissions he made to resolve the disciplinary complaint.

Also, while he states he does not object to the Indiana Supreme Court making public the conditional agreement and the affidavit, he presents his arguments for keeping the documents private.

Then, in a twist, he attempts to one-up the disciplinary commission by urging the Supreme Court to release all “deliberations and meetings” regarding his reprimand to the public, if it decides to approve the disciplinary commission’s petition.

“If the Court were to find that ‘extraordinary circumstances’ exist, then (Rokita) suggests that all Disciplinary Commission deliberations and meetings that relate to him are extraordinary and should be opened to the public in real time so that the Public can benefit from observing deliberations of a body that is not elected and never has meetings open to the Public.”

Rokita’s response was his answer to the petition the disciplinary commission filed in December, as reported by the Indiana Capital Chronicle. The commission asked the Indiana Supreme Court to lift the veil of confidentiality and release to the public the conditional agreement and affidavit from his first disciplinary case.

The commission argued Rokita’s post-reprimand statement caused “extraordinary circumstances” that called for the private documents to be divulged. Specifically, the commission asserted Rokita’s post-reprimand statement created confusion about whether he admitted to any misconduct and the extent of the reprimanded misconduct. Moreover, his statement was “inconsistent with what he agreed to” in the conditional agreement and affidavit.

“In such circumstances, the extraordinary measure of publicly releasing the Conditional agreement and accompanying affidavit is necessary to restore public faith that lawyers cannot manipulate the discipline system to obtain a desired result and then counter with a public statement disavowing the acceptance of wrongdoing,” the commission stated in its petition.

However, Rokita challenged the disciplinary commission’s assertions. He said that the “extraordinary circumstances” and public interest that it said compelled it to seek the release of the documents was not proven and shows that the commission “cannot withstand political pressure” from others who sought that result. Also, he said, releasing those documents would not increase confidence within the legal community or public, instead claiming that “it does the opposite if the Commission can renege on confidentiality.”

‘Aiding and abetting political detractors’

Rokita was reprimanded for violating two rules of the attorney code of professional conduct for a statement he made on national television about Dr. Caitlin Bernard, an Indianapolis OB/GYN.

In the summer of 2022, Bernard confirmed to The Indianapolis Star that she had provided abortion care to a 10-year-old rape victim who had to travel to Indiana because of the restrictions on abortion in her home state. Speaking on Fox News, Rokita called Bernard “an abortion activist acting as a doctor – with a history of failing to report” as required by Indiana law.

After disciplinary grievances were filed against Rokita by members of the Indiana legal community because of the statement he made about Bernard, the attorney general’s office filed a complaint against the physician with the Medical Licensing Board of Indiana for talking publicly about the abortion case. Bernard was subsequently found to have violated patient confidentiality and was reprimanded and fined.

Rokita, represented by the Washington, D.C., law firm of Schaerr Jaffe and the Indianapolis firm of Ammeen Valenzuela Associates, avoided a public hearing on his disciplinary matter by negotiating the conditional agreement with the disciplinary commission. The Supreme Court accepted the agreement and issued its public reprimand in November.

In the commission’s complaint filed with the Supreme Court, Rokita was charged with violating three professional conduct rules. The third count of violating Rule 8.4(d), which prohibits lawyers from engaging in “conduct that is prejudicial to the administration of justice,” was dismissed as part of the agreement.

Rokita asserts in his response that the commission overcharged him with regard to the third count, which caused the public confusion about his discipline and his statement. He claims the commission wants to release the agreement and affidavit to the public to “exonerate itself from the mess it caused by overcharging (him) with a count it knew it would dismiss.”

“(Rokita) has nothing to hide. (His) press release is truthful and consistent with his Answer, the Conditional Agreement and Affidavit, and the Per Curiam Opinion” from the Supreme Court, the attorney general’s response says. “(He) denies having defied the Supreme Court or having contradicted any provision of the Public Reprimand. He asserts the Commission is aiding and abetting his political detractors by petitioning to obtain an exception to the Rules it is charged with enforcing.”

‘Used to further a political agenda’

Both the commission’s petition and Rokita’s response acknowledge the parties tried to reach an agreement to release the confidential documents but the negotiations failed. Rokita claims the commission wanted to prohibit him from speaking publicly about his decision to waive confidentiality. He says “a gag order is something an attorney general cannot agree to because it is a disservice to the directness and accountability Hoosiers deserve from elected officials and otherwise is not something government should impose on people.”

Yet, in his response, Rokita drops hints about the contents of the affidavit and the conditional agreement.

He says the affidavit is four paragraphs  long and quotes from Indiana attorney admission and discipline Rule 23 section 17.1(a)(4). Also, he says the conditional agreement contains the same language as his answer to the complaint where he admitted he “could reasonably be considered to have violated” the professional conduct rules 3.6(a) and 4.4(a).

In addition, Rokita swipes at the disciplinary commission for opening another investigation into his conduct and at the attorneys who filed grievances against him. The commission has asked him to respond to a grievance alleging his post-reprimand statement violated the rules of professional conduct that prohibit an attorney from making false statement to a tribunal and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Rokita says the disciplinary commission “used charged language” in its petition to publicly release the conditional agreement and affidavit, knowing new grievances had been filed. Moreover, he asserts the attorneys who filed the grievances should be held accountable for violating confidentiality rules when they spoke publicly about filing their grievances.

He also says that the language the commission used in its petition shows that it “cannot be counted on to give (him) a fair review of new grievances,” and he claims that releasing the agreement would be prejudicial to him “in other proceedings before the Commission.”

Rokita asserts if he is forced to defend further, he will produce “irrefutable evidence” to show his statements have been truthful.

“He will also show how the Commission is being used to further a political agenda that has not been carried out at the ballot box – the only appropriate forum for political action,” Rokita says in his response. “The Commission needs to be disentangled from ongoing politics driven by political commentators. If the Commission is not cordoned-off from the political stage, then its meetings need to be made fully public when called upon to consider matters affecting (Rokita), any lawyer who is a public official or even any lawyer.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.