The following report was written for The Indiana Citizen by veteran Indiana legal journalist Marilyn Odendahl.
February 8, 2023
Indiana Attorney General Todd Rokita is being investigated by the Indiana Supreme Court Disciplinary Commission and is paying a Washington, D.C., law firm to defend him, according to a petition filed Feb. 2 by his office’s outside counsel Schaerr Jaffe.
Gene Schaerr, managing partner of the law firm, filed the petition with the Supreme Court asking for temporary admission so he can represent Indiana in the case Rokita brought before the medical licensing board against Indianapolis OB/GYN Caitlin Bernard. He also acknowledges that he has filed a similar petition to appear before the disciplinary commission in the grievance against Rokita.
The Schaerr firm’s petition is the first public acknowledgement that grievances filed by several Indiana attorneys stemming from Rokita’s critical statements in July 2022 about Dr. Bernard — who performs abortions — are being seriously investigated by the disciplinary commission.
The petition does not identify the reason for the investigation. However, the citation to the commission’s case – In the Matter of the July 27, 2022 Grievance Against Theodore K. Rokita – indicates the investigation is linked to the attorney general’s public comments about Bernard. In addition, the attorney general’s office amended its contract with Schaerr Jaffe, enlisting the firm to provide services related to several matters related to Bernard.
Rokita’s office did not respond to a request for comment from The Indiana Citizen about the disciplinary investigation.
Rokita made several statements last summer publicizing his office’s investigation into Bernard. He gave media interviews and issued press releases after The Indianapolis Star published a story that included a report of Bernard having performed an abortion on a 10-year-old rape victim from Ohio.
The attorney general accused the physician of being an “abortion activist” and not reporting the termination of the pregnancy as required by Indiana law.
Prominent members of the Indiana legal community subsequently criticized the attorney general.
Former dean of the Indiana University Maurer School of Law, Lauren Robel, filed a complaint with the disciplinary commission in July, against the state’s top lawyer. In a supplemental letter to the commission’s executive director, Adrienne Meiring, Robel asserted Rokita not only made accusations about Bernard without evidence but also did not retract those comments when they were shown to be false.
“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. “This is the opposite of the rule of law.”
Retired 7th Circuit Court of Appeals Judge John Tinder and retired Indiana Congresswoman Susan Brooks admonished Rokita in a column published by The Wall Street Journal, rebuking Rokita for his conduct. Tinder and Brooks, who both served as U.S. Attorney for the Southern District of Indiana, wrote, “A prosecutor should never wield the government’s extraordinary authority for political or ideological aims.”
Investigations and prosecutions of complaints about attorney misconduct are handled by the disciplinary commission.
Most complaints filed with the disciplinary commission do not result in any action. During the 2022 fiscal year, the commission received 1,270 complaints and summarily dismissed 997 of them, according to the Indiana Supreme Court’s annual report for 2021-2022. Of the remaining complaints, the commission investigated 273 and dismissed 72 of them after review.
Lawyers are notified when a complaint has been filed against them and are required to submit a written response to any complaint that is not dismissed outright, according to the disciplinary commission’s 2020-2021 annual report. If the preliminary inquiry raises a “substantial question of misconduct,” then the executive director will open the matter for further review.
If the executive director has “reasonable cause to believe” the lawyer is “guilty of misconduct,” the complaint is docketed for further investigation followed by full consideration from the commission. If the commission finds reasonable cause that the lawyer engaged in misconduct, a complaint is then filed with the Indiana Supreme Court which will appoint a hearing officer to preside over the case.
At the conclusion of the proceeding, the hearing officer will submit a report to the Supreme Court. If the justices find the lawyer violated the Indiana Rules of Professional Conduct, they can issue a sanction. Those sanctions range from a private admonition to a suspension to disbarment.
Rokita’s predecessor, Curtis Hill, also faced a disciplinary commission investigation after he was accused of groping several women in a bar at a party celebrating the end of the 2018 Indiana General Assembly session.
Retired Indiana Justice Myra Selby was appointed as the hearing officer. She concluded Hill had committed acts of misdemeanor battery and, as a result, violated two rules of professional conduct. Although the Supreme Court agreed with Selby’s conclusions, it did not follow her recommendation to suspend Hill’s law license for 60 days without automatic reinstatement. Instead, the justices in In the Matter of Curtis T. Hill, Jr., 19S-DI-156, took away Hill’s license to practice for 30 days and then reinstated it.
In July 2022, a group of law professors from Indiana University Maurer School of Law, Indiana University Robert H. McKinney School of Law and Notre Dame Law School sent a letter to Rokita, expressing their concerns about his statements regarding Bernard.
The educators highlighted the Indiana Rules of Professional Conduct that they indicated Rokita may have violated. In particular, they pointed to the rules that prohibit an attorney involved in an investigation from making statements that are likely to prejudice the proceeding and that bar an attorney from making untrue statements.
“We deeply regret that you have abused your power as a prosecutor and hope you will immediately apologize publicly to Dr. Bernard, remove the offensive statement from your Webpage and Twitter, and commit yourself to responsible execution of your powers in the future,” the professors wrote.
Rokita defended his actions in an Aug. 19, 2022, press release.
“Based on a doctor intentionally reporting her patient’s circumstances to the media, my office undertook a review of that act in response to public concern,” Rokita stated. “I reported that fact in response to media inquiries and public outcry, and in doing so met my duty to inform the public, which is an important role of the Attorney General.”
In December, Rokita was again rebuked for his conduct, this time by a judge presiding over a case against him.
Marion County Superior Court Judge Heather Welch found the attorney general had violated state law when he disclosed his office was investigating Bernard.
The order came in the lawsuit filed by the doctor to stop the attorney general from talking about the matter. In Bernard v. Rokita, 49D13-2211-MI-038101, Welch denied Bernard’s motion for a preliminary injunction but also denounced Rokita’s actions.
On the day the order was issued, the attorney general’s office released a statement, declaring a “major victory.” Rokita had claimed Bernard violated the 10-year-old’s privacy by discussing the abortion with the Star.
“This is a win for patient privacy rights in the practice of medicine and for properly reporting child abuse,” Rokita said in the press release.
Since then, Rokita has engaged Schaerr Jaffe to get the order revamped. Specifically, the attorney general wants the court to correct its “erroneous finding” that he violated confidentiality laws.
Marilyn Odendahl has spent her journalism career writing for newspapers and magazines in Indiana and Kentucky. She has focused her reporting on business, the law and poverty issues.