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Indiana Attorney General Todd Rokita has used public money to pay the private law firm, Schaerr Jaffe, to defend him before the Indiana Supreme Court Disciplinary Commission. (Photo/submitted)

(Editor’s note: this story has been updated to reflect the attorney general’s office did respond to a request for comment.)

By Marilyn Odendahl

The Indiana Citizen

 November 28, 2023

Weeks after being public reprimanded, Indiana Attorney General Todd Rokita is – again – under investigation by the Indiana Supreme Court Disciplinary Commission for the statement he made after signing the affidavit to settle his previous disciplinary complaint.

According to letters Indianapolis attorneys Paula Cardoza-Jones and William Groth received from the disciplinary commission and shared with The Indiana Citizen, a preliminary investigation has been opened into Rokita for alleged misconduct. Both Cardoza-Jones and Groth filed separate grievances, independent of each other, with the disciplinary commission.

Rokita must now provide a written response to allegations that he violated two rules of professional conduct. After reviewing the grievances and Rokita’s response, the commission could dismiss the matter altogether or conduct a further investigation and present its findings to the full disciplinary commission. If the matter is presented to the full commission, the members will then decide whether Rokita engaged in misconduct that warrants a disciplinary action.

The commission is paying special attention to Cardoza-Jones’ grievance.

Specifically, the disciplinary commission is investigating whether Rokita violated Indiana Professional Conduct Rules 3.3(a)(1) and 8.4(c). The former rule prohibits a lawyer from knowingly making a false statement of fact to a tribunal – in this case, the Indiana Supreme Court. The latter defines professional misconduct for a lawyer as engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Cardoza-Jones asserted that Rokita violated the rules by making false statements in his affidavit. That affidavit supported the conditional agreement that the Indiana Supreme Court accepted to resolve the previous complaint the commission had filed against him.

“The Commission agreed to and the Court narrowly approved a very generous (conditional agreement), finding, ‘Respondent’s acceptance of responsibility is a mitigating factor,’ ” Cardoza-Jones wrote in her grievance. “Rokita, however, has not accepted responsibility for his misconduct. In his Website Response, filed immediately after the Court’s decision, he denied any misconduct and paints himself as a victim of the media, liberal activists and cancel culture, among others. By implication, he includes the Commission and the Court among his perceived unjust persecutors.”

The Indiana Citizen reached out Monday afternoon to attorney general Rokita’s office for a comment and gave the deadline of 8 a.m. Tuesday to respond. The office asked Monday evening to push the deadline to 10 a.m. and then on Tuesday morning, asked that the deadline be extended again to noon. As of 12:30 p.m., the time of publication, no response had been received.

The attorney general’s office did issue a statement to The Indiana Citizen Tuesday evening.

Contradicting his sworn affidavit

On Nov. 2, the Indiana Supreme Court issued a public reprimand to Rokita as part of a conditional agreement to settle a complaint that had been filed against him by the disciplinary commission. The reprimand focused on what he said about Dr. Caitlin Bernard, an Indianapolis OB/GYN, during an interview with Fox News on July 13, 2022.

Rokita targeted Bernard after The Indianapolis Star reported she had performed an abortion on a 10-year-old rape victim from Ohio in June 2022. The young girl could not get the procedure in her home state because, at that time, Ohio had placed severe restrictions on abortion care.

During the Fox interview, Rokita called Bernard an “abortionist activist acting as a doctor – with a history of failure to report.” He went on to say that his office was “gathering the evidence” and preparing to fight, which included “looking at her licensure if she failed to report.”

A split Indiana Supreme Court accepted by a vote of 3-2 a conditional agreement that Rokita and his attorneys had negotiated with the disciplinary commission. Under the terms of the agreement, Rokita was given a public reprimand but was allowed to keep his law license.

Indiana Chief Justice Loretta Rush and Justice Christopher Goff dissented, saying the reprimand was too lenient.

The Supreme Court majority highlighted that in a sworn affidavit made under penalty of perjury, Rokita admitted he violated Indiana Professional Conduct Rules 3.6(a), which prohibits a lawyer from making a statement during litigation that could prejudice a legal proceeding, and 4.4(a), which bars a lawyer from making statements meant only to embarrass, delay or burden a third person. Also, Rokita acknowledged he could not successfully defend himself against the two charges if this matter proceeded to a trial.

Weighing in Rokita’s favor, the majority noted, were several mitigating factors. Namely, he had accepted responsibility, cooperated with the disciplinary commission and did not have a prior discipline during his career.

However, the same day the Supreme Court approved the conditional agreement, Rokita issued a lengthy, fiery statement. In part, Rokita said, “Having evidence and explanation for everything I said, I could have fought over those 16 words, 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 an affidavit without any modifications.”

Cardoza-Jones asserted in her grievance that that part of Rokita’s statement “directly contradicted his sworn affidavit.” In that affidavit, she said, Rokita admitted to the facts underlying the two charges against him, admitted to the violations, acknowledged he could not successfully defend himself against the charges and stated that his consent was freely and voluntarily given.

Rather than accept responsibility for his “sworn admission to misconduct,” Cardoza-Jones wrote in her grievance, Rokita doubled down.

In her grievance, Cardoza-Jones said she had worked for 10 years in the area of professional responsibility, including two years as a staff attorney with the disciplinary commission. She said she couldn’t remember “in all that time” encountering a case where an attorney was so “unrepentant, defiant toward his ethical duties, the Commission, the Court, the legal profession, and the administration of justice.”

Accounting of public funds sought

Groth also pointed to Rokita’s statement after he signed the affidavit and asserted the attorney general continued making “defamatory attacks on Dr. Bernard” the same day as his public reprimand. This, Groth said, violated the rules of professional conduct including 8.4(c ).

In particular, Groth cited Rokita’s statement repeatedly calling Bernard an “abortionist.”

Groth contended the use of the word is “dishonest and defamatory” because an “abortionist” is a person who performs abortions often illegally or for money. Calling Bernard an “abortionist” with all of its negative connotations and inferences is “tantamount to accusing her of violating Indiana’s criminal law prohibiting abortion,” Groth said. Indiana law now bans abortion, except in the case of rape, incest, fatal fetal abnormalities and dangerous complications threatening the health of the mother.

Moreover, Groth echoed Cardoza-Jones’ assessment that Rokita has not shown any remorse. Instead, Groth said, Rokita decries “liberal activists” and maintains that he is above reproach but had to sign the affidavit to settle the complaint.

“This is not the tone or words of a lawyer who has accepted responsibility for adjudicated professional misconduct,” Groth wrote in his grievance, noting the Indiana Supreme Court considered contrition a key factor in determining a disciplinary punishment. “His subsequent statement demonstrates his utter lack of contrition rather than an acknowledgement and acceptance of his professional misconduct and warrants the Commission reopening his professional misconduct case.”

Cardoza-Jones suggested in her grievance that Rokita’s law license be suspended without automatic reinstatement.

“Rokita has demonstrated that this is the only way to protect the public, the legal profession and the administration of justice from further misconduct,” Cardoza-Jones wrote in her grievance.

Groth asked the commission to order Rokita to provide a full accounting of the public funds he has spent on his outside lawyers to represent him in the previous disciplinary matter that resulted in the reprimand and to reimburse the public for those expenditures.

Rokita’s legal team includes attorneys from Schaerr Jaffe, based in Washington, D.C., and James Ammeen of Ammeen Valenzuela Associates in Indianapolis. Invoices from the Indiana Comptroller show Schaerr Jaffe’s costs spiked late last year, as Rokita was having to defend his actions against Bernard. However, the invoices are heavily redacted so determining exactly how much taxpayers have paid to defend Rokita’s law license is impossible.

“(Rokita) can no longer plausibly claim that using public funds for his private defense is somehow justified because his misconduct occurred in the scope of his duties as Attorney General,” Groth wrote in his grievance. “Clearly, words and deeds by a public official who is the State’s highest law enforcement official that constitute professional misconduct are ultra vires and beyond the powers and duties of the Attorney General.”

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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