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By Marilyn Odendahl

The Indiana Citizen

November 3, 2023

Indiana Attorney General Todd Rokita’s response to his public reprimand has angered some prominent members of the legal profession and spurred at least one attorney to draft a new disciplinary grievance against the state’s top lawyer.

Former dean of Indiana University Maurer School of Law Lauren Robel and former chief legal counsel and executive director of the Indiana Supreme Court Disciplinary Commission Don Lundberg – whose complaints to the commission triggered its inquiry into Rokita – both see Rokita’s actions as lacking the seriousness that should come with being publicly reprimanded and as contradicting the high standards his office demands.

“I think that a satisfactory ending to this case would be for the attorney general to apologize for misusing his power of office in this case,” Robel said. “His post-reprimand conduct has been to double down on the very statement that caused him to be disciplined. … I find it disturbing that General Rokita has reacted to all of this by simply dismissing his role in misusing his office in a way that violates the obligations he has as an attorney.”

Rokita was reprimanded for a statement he made in July 2022 on Fox News about Dr. Caitlin Bernard, an Indianapolis OB/GYN. The attorney general was being interviewed after the story had broken that Bernard had performed an abortion on a 10-year-old Ohio rape victim in the summer of 2022.

During the interview, Rokita described Bernard as an “abortion activist” and said she “had a history of failing” to properly file her medical reports with the state.

The disciplinary commission filed a complaint against Rokita in September 2023, charging him with violating three rules of professional conduct.

Thursday, a majority of the Indiana Supreme Court issued a ruling on the complaint, accepting the conditional agreement Rokita and the commission had reached. Chief Justice Loretta Rush and Justice Christopher Goff dissented, because they thought the punishment was too lenient.

The conditional agreement is confidential, but Rokita was found to have violated two rules of attorney conduct because his statement on Fox News had a “substantial likelihood” of unfairly influencing any proceeding against Bernard and had no purpose other than to “embarrass or burden the physician,” according to the Supreme Court ruling.

Rokita blames media, others

After the opinion was issued, Rokita lashed out at “the media, medical establishment and cancel culture” in a press release and defended his statement about Bernard. He called his comment made on Fox “truthful,” saying he has “evidence and explanation for everything I said” and that he could have continued fighting the disciplinary action but stopped to save taxpayers money.

“As I said at the time, my words are factual,” Rokita said in his press release. “The IU Health physician who caused the international media spectacle at the expense of her patient’s privacy is by her own actions an outspoken abortion activist.”

Lundberg sees Rokita’s response as contrary to how attorneys should act after being publicly reprimanded.

“Rokita’s public statement reflects someone who has no remorse for his misconduct, fails to accept responsibility for his conduct, backtracks on his sworn statement that he could not defend himself against those charges and otherwise holds the system of lawyer regulation up to ridicule,” Lundberg said in an email.

Robel drew national attention to Rokita’s actions when she made public a letter she wrote to the Indiana Supreme Court Disciplinary Commission calling for an investigation. She asserted the state’s top attorney made “false or baseless” statements about Bernard during his appearance on Fox News.

“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,” Robel wrote in her letter.

Speaking to The Indiana Citizen, Robel said she agreed with the dissenting justices that the punishment against Rokita was too light. The central problem with the attorney general’s conduct is not the “technical violation” of the ethics code, she said. Rather, the problem is “the abuse of his office to smear a citizen apparently because of his disagreement with her political views.”

Another grievance being filed

As part of the conditional agreement, Rokita signed an affidavit – admitting to the misconduct.

In his press release after the reprimand was announced, Rokita struck a seemingly different tone. “Having evidence and explanation for everything I said, I could have fought over those 16 words,” Rokita said in his response, referencing his statement to Fox News, “but ending their campaign now will save a lot of taxpayer money and distraction, which is also very important to me. In order to resolve this, I was required to sign the affidavit without any modifications.”

 Robel said by signing the affidavit, Rokita was admitting to the “factual basis for the charge” and accepting responsibility for it. Also, she pointed out, that in return, Rokita got the benefit of a third alleged professional conduct rule violation which was included in the disciplinary complaint being dismissed.

The disciplinary commission had also charged Rokita with engaging in conduct that prejudiced the administration of justice. However, that charge was dropped in the negotiations between Rokita and the commission that resulted in the conditional agreement.

 As for wanting to save taxpayers money, Robel said Rokita was correct. Hoosiers taxpayers could possibly save money by resolving this disciplinary matter and not having it go to a hearing, she said.

“But I think it’s also fair to suggest that the reason he did this is that he didn’t have a defense,” Robel said of Rokita signing the affidavit. “Not having a defense to this is the reason that many people accept plea agreements – to get out of serious trouble.”

However, Lundberg said he is disappointed that the disciplinary commission even entered into the conditional agreement with Rokita in the first place – namely because it dropped the third charge. Lundberg referenced the complaint against Rokita that he filed with the commission in which he stressed the importance of lawyers’ commitment to the administration of justice.

“The Indiana legal profession’s commitment to the fair administration of justice requires lawyers, especially public lawyers and, in this case, the highest-ranking public lawyer to trust the administration of justice to produce just results, not to fan the flames of public condemnation before that administration of justice has had an opportunity to do its work,” Lundberg wrote.

A former staff attorney for the disciplinary commission, speaking on the condition of anonymity, thinks Rokita’s response to his public reprimand violated the professional rules of conduct and is in the process of filing another grievance against him and his legal team from Schaerr Jaffe, a law firm based in Washington, D.C., with the disciplinary commission.

Specifically, the attorney said Rokita committed perjury after the Supreme Court approved the conditional agreement.

As the attorney explained, by signing the affidavit, Rokita was acknowledging he did violate the rules of conduct and he could not successfully defend himself against those charges if the matter had gone to a hearing. Yet, in his response, Rokita said the opposite with his claim to “having evidence and explanation for everything” and that he was required to sign the affidavit.

Lundberg also saw a similar problem.

“It is as though (Rokita) figuratively had his fingers crossed behind his back as he was executing the affidavit,” Lundberg said.

Possibly not over

Rokita is the second Indiana attorney general in a row to face disciplinary charges.

Curtis Hill, who served as the state’s top lawyer from 2016 to 2020, was charged with professional misconduct for inappropriately touching four women in a bar during a celebration of the end of the 2018 legislative session. Unlike Rokita, Hill did not enter into a conditional agreement and instead appeared at a disciplinary hearing.

The hearing officer recommended Hill have his license suspended with no automatic reinstatement, but the Indiana Supreme Court reduced that to a 30-day suspension after which his license would be restored.

Lundberg, who represented Hill, reiterated his disappointment with the commission’s decision to enter into the conditional agreement with Rokita.

“If the previous attorney general received a 30-day suspension for conduct that did not involve the exercise of his authority and power as attorney general, Rokita’s abuse of the power of that office is worth at least that degree of sanction,” Lundberg said.

Both Lundberg and the attorney speaking anonymously noted the possibility of Rokita’s disciplinary case being reopened by the Supreme Court in light of his combative response.

Lundberg highlighted a disciplinary case from 2001— In the Matter Re: Peter L. Benjamin, 45S00-0009-DI-00524 – in which the attorney who was disciplined made statements afterward that contradicted the statements he made under oath in his affidavit. The Supreme Court responded by issuing an order requiring the lawyer to explain why his affidavit should not be rejected.

“The Court should do that in Rokita’s case in order to uphold the integrity of the lawyer regulation process,” Lundberg said.

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.