DISCIPLINARY CHARGES: AG Rokita faces 3 allegations of attorney misconduct in Caitlin Bernard case

By  Marilyn Odendahl

The Indiana Citizen

September 18, 2023

Indiana Attorney General Todd Rokita has been charged with three counts of attorney misconduct by the Indiana Supreme Court Attorney Disciplinary Commission, which said comments he made about Indianapolis OB/GYN Caitlin Bernard caused “irreparable harm” and “burdened the court system.”

The disciplinary commission filed the complaint against Rokita with the Indiana Supreme Court Monday. The complaint stems from remarks Rokita made in the days and weeks after The Indianapolis Star reported Bernard had performed an abortion on a 10-year-old Ohio rape victim in June 2022.

Specifically, the commission said the attorney general violated state confidentiality laws by publicly speaking about his office’s investigation into Bernard prior to filing the administrative complaint with the Medical Licensing Board of Indiana.

Rokita, the commission stated in the complaint, breached the confidentiality requirements of Indiana Code section 25-1-7-10(a), which “caused irreparable harm to Dr. Bernard’s reputational and professional image.” Also, the break of confidentiality “burdened the court system and caused additional and logistical issues for the Medical Licensing Board to navigate.”

As a result, the commission has charged Rokita with violating three Indiana Attorney Rules of Professional Conduct. It has requested that Rokita be disciplined but did not make any recommendation as to what action the Indiana Supreme Court should take.

In announcing the filing of the complaint, the Indiana Supreme Court emphasized the charges are allegations. The attorney general will have the opportunity to respond to the charges.

A trial-like proceeding may be held into the allegations of misconduct, or the commission and Rokita could reach an agreement and present it to the Supreme Court. The justices will ultimately determine if any misconduct has occurred and what sanction is warranted.

Rokita issued a statement and a combative response to the complaint Monday. He defended his actions and pointed out that Bernard had been reprimanded and fined by the Medical Licensing Board for violating the Ohio girl’s privacy.

“We will continue defending Indiana’s laws and ensure that licensed medical professionals and other healthcare providers are held accountable when they violate their patients’ privacy and fail to obtain consent,” Rokita said in his statement.

Bernard’s attorney, Kathleen DeLaney of DeLaney & DeLaney in Indianapolis, issued a press release about the disciplinary charges being filed but declined to comment on the specific allegations contained in the complaint.

“Our legal team had no involvement in the recent charges filed and therefore cannot comment on them. We will watch how the Disciplinary Commission process proceeds and let the complaint speak for itself,” DeLaney said in the statement.

DeLaney noted that when the Medical Licensing Board reprimanded Bernard, it also found she did not fail to report child abuse and that she was not unfit to practice medicine, as alleged in the administration complaint filed by Rokita.

Three rules

In the complaint, the commission highlighted Rokita’s statement he made on national television on July 13, 2022, while his office’s investigation into Bernard was ongoing. Appearing on Jesse Watters’ show on Fox News, the attorney general described Bernard as an “abortion activist acting as a doctor – with a history of failure to report.”

The commission found the extrajudicial comment violated the Indiana Attorney Rules of Professional Conduct 3.6(a), which prohibits lawyers from making statements that could prejudice legal proceedings. Also, the commission determined the comment violated Rule 4.4(a), which bars attorneys from taking actions that are only meant to harass a person or from obtaining evidence by using methods that violate the law.

In addition, the commission held that Rokita violated Rule 8.4(a), saying he committed professional misconduct by making statements and/or directing others to make public comments about the investigation into Bernard prior to the matter being referred to the Medical Licensing Board of Indiana.

Rokita is the second Republican attorney general in Indiana within the past five years to face disciplinary charges. His predecessor, Curtis Hill, was investigated after four women accused him of inappropriately touching them at a party following the end of the 2018 legislative session.

Hill was charged with violating two rules of professional conduct and the “Oath of Attorneys.” The judge who presided over his disciplinary hearing recommended the Indiana Supreme Court suspend Hill’s law license for 60 days without automatic reinstatement. However, the justices, who determined that Hill violated professional conduct rules and committed battery in the case, took away his license for 30 days and then returned it.

Public comments

The disciplinary case originates from Rokita’s actions last summer in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization which overturned federal protections on abortion.

On July 1, 2022, The Indianapolis Star published an article that reported about Dr. Bernard performing an abortion on a 10-year-old Ohio rape victim. The story quickly gained national attention and on July 13, 2022, Rokita started speaking publicly about Bernard and his office’s investigation into her actions.

He first appeared on Watters’ show on Fox News where he also said his office was “gathering evidence” and “looking at her licensure.”

Then, in making public a letter he sent to Gov. Eric Holcomb and in a press release, Rokita, again, stated his office was investigating Bernard.

In September 2022, Rokita talked about the investigation on a Facebook Live broadcast and with local news reporters.

Rokita’s appearances and public statements drew sharp rebukes from the Indiana legal community. Former Indiana University Maurer School of Law dean Lauren Robel was the first to condemn the attorney general and call for the disciplinary commission to investigate him.

“What General Rokita did, in essence, was identify a private citizen whose political view he disagrees with and suggest repeatedly, on national television, and on the Attorney General’s official website, that she had broken the law, with no evidence to support those claims,” Robel wrote. “If he can throw the entire weight of his office without consequence to attack Dr. Bernard, he can do so to target any private citizen with whom he disagrees. This is the opposite of the rule of law.”

In November, Bernard and her colleague, OB/GYN Amy Caldwell, filed a complaint against Rokita for his public comments and asked the court to prohibit him from speaking further. Marion County Superior Court Judge Heather Welch denied the motion for preliminary injunction in December 2022 but, in her order, she detailed Rokita’s actions and found he likely violated confidentiality laws by speaking about Bernard.

The commission’s complaint includes a copy of Welch’s order.

 Attorneys from Schaerr Jaffe filed a motion to remove the comments about Rokita from Welch’s order. They eventually dropped their request when the judge presiding over the matter said they would have to return to Welch’s courtroom and make their arguments to her.

Disciplinary process

The disciplinary commission’s investigations are typically secretive. But in a January petition for temporary admission to practice in Indiana, the attorneys from Schaerr Jaffe, a Washington, D.C., law firm, stated they were representing Rokita in the disciplinary matter.

That a complaint with the Indiana Supreme Court against Rokita has been filed signals the disciplinary commission reviewed the investigation into his actions and found “probable lawyer misconduct.”

If the case proceeds to trial, a hearing officer will be appointed and the commission and Rokita will present their arguments. The hearing officer will make a recommendation to the Indiana Supreme Court, which will make the final determination as to what, if any, discipline will be imposed.

AG’s response

Rokita filed a 30-page answer to the commission’s complaint, blaming Bernard for creating the publicity surrounding the juvenile rape victim and asserting that, as attorney general, he had a duty to keep the public informed about his office’s actions.

Moreover, he claims the complaint violates the Indiana Constitution’s separation-of-powers provision and the First Amendment of the U.S. Constitution, as well as Article 1, Section 9 of the Indiana Constitution.

“The Attorney General is not responsible for the interest generated in the Bernard matter and any judicial burden that ensued,” Rokita’s response states. “Dr. Bernard’s public disclosure of her patient’s private medical information at a political function was the primary cause of the public interest. Public interest in administrative and judicial processes is not prejudicial to the administration of justice.”

However, Rokita did address his remark that called Bernard an “abortion activist acting as a doctor — with a history of failure to report” in his response to the disciplinary commission, admitting that it “could reasonably be considered to have violated” professional conduct rules 3.6(a) and 4.4(a). Yet, he asserted that if the complaint proceeds to a hearing, he will demand the state produce “strict proof” of his violation.

Also Rokita denies he violated professional rule 8.4(d) by making public statements or directing others to issue public statements about the investigation into Bernard prior to the referral to the Medical Licensing Board.

Rokita also criticizes the state statute, I.C. section 25-1-7-10(a), that the commission accuses him of breaking. The law mandates that all complaints be kept confidential until the attorney general files notice with the licensing board of his intent to prosecute the license holder.

He argues the law is unclear as to whether it applies to this situation since, he contends, Bernard was the one who revealed the complaints had been filed against her and disclosed private patient information.

Rokita asserts he did not violate the statute because he did not make comments about the “complaints and information pertaining to the complaints.”

In addition, Rokita questions whether the statute even applies to him as the attorney general. The provision bars “a person in the employ of the office of the attorney general” from disclosing information about the complaint. Rokita argues since he is a “democratically elected official who answers to the people” – and not an employee of the attorney general’s office – the law does not place any prohibitions on him discussing the complaints.

 “The Attorney General has a legal duty to keep the public informed of the Office’s actions and decisions; and, it is unclear how the contours of the confidentiality afforded by the Statute interact and intersect with the Attorney General’s duty to keep the public informed about non-confidential matters,” Rokita says in his response.

Editor’s note: This story has been updated to include information from Indiana Attorney General Todd Rokita’s answer to the disciplinary complaint.

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. 

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