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Lawyers balance public role as legislators

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In his 35 years as a lawyer-legislator, Sen. Richard Bray has thought about whether he should get involved in litigation because of his role as an elected state official. While he doesn't recall this ever affecting his involvement on a case or legislation before him, the veteran attorney from Martinsville, who practices with his son at The Bray Law Office, sees how it could present problems.

The state's government ethics guidelines and the Indiana Supreme Court's Rules of Professional Conduct vaguely address the issue, but there isn't clear guidance that dictates how a lawmaker is required to handle that particular situation whether they're an attorney or not.

Mostly, it boils down to each using his or her own judgment and balancing the public office with that of being an attorney, or a particular situation that could present a conflict of interest if it ever came before the General Assembly.

"I wouldn't take a case against the state, and might shy away from one that involves anything I would have to consider as a senator," he said. "... you always have to be alert and aware that there aren't actual conflicts or anything that could be perceived that way."

Professional Conduct Rule 8.4 commentary states, "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers."

Analyzing possible conflicts

The National Center for State Courts doesn't specifically track legislators being sued or involved in litigation that could present a conflict. However, researchers there point to media reports and public court dockets to show that lawmakers in other states have also been plaintiffs or defendants while serving their constituents. Dozens of Hoosier legislators have had their names associated with cases through the years, whether it be as plaintiff, defendant, or amicus party, according to some of the attorney-legislators who've been in the General Assembly for years.

"When you run for public office, you expose yourself to potential litigation," said Rep. Brian Bosma, R-Indianapolis, a 23-year General Assembly veteran and former House speaker who's a partner at Kroger Gardis & Regas. "You do make yourself a target, whether you like it or not."

The first time Bosma faced a lawsuit as a legislator and not simply as an attorney came in 1986 during his first year. He recalled how someone sued every Indiana legislator for a share of the national debt. One he can't forget is a high-profile legislative prayer case from 2005, when some taxpayers sued the House of Representatives for its practice of opening sessions with a prayer and Bosma was named as defendant.

"That was the first time in my legislative or legal career that I found myself as a client, rather than a lawyer on a case," he said, noting his first task was to find a lawyer with expertise in that area of law. "Being sued gave me a little empathy for those involved in actions that aren't of their doing. ... Participating in that case as it worked through the legal system, and having the federal court judge comment about my being a lawyer and abiding by the professional and court rules ... that was an interesting experience."

As far as legislators getting involved in litigation as a third party, Bosma said he doesn't see any conflict with a legislator being associated with a case because it's a question of personal credibility and responsibility.

For example, he recalled a 1990s case where some legislators asked the courts to intervene in the legislative process to stop a statute from being enacted, but the appellate courts held that wasn't their business and it wouldn't intervene. He hasn't been involved in anything like that in part because of his scant experience in signing on to briefs as a legislator. There have been only four or five cases, such as one involving gun regulatory issues, in which Bosma recalled signing on as an amicus party during the past two decades.

"I'm asked to do that a lot but make sure any involvement is on an issue that's important and I fully agree with," he said. "I've turned down a lot of requests to add my name to cases because I'd be uncomfortable putting my name to an effort I didn't wholeheartedly ideologically agree with."

Because Indiana doesn't have legislative histories for enactments, Bosma said lawmakers are occasionally asked to serve as witnesses or sign on to briefs about the thought process in state or federal courts reviewing statues. He has testified in that manner before. As a general rule, the Indiana Attorney General is assigned the task of defending legislators when they're sued in their official capacity, including when subpoenas are served. Some hire outside counsel, as well.

The AG's office has been involved in about 20 cases during the past decade representing the General Assembly, House, Senate, or individual lawmakers, according to spokesman Bryan Corbin. Most were routine pro se prisoner cases naming the Department of Correction and state leaders, and some have been civil disputes where a legislator received a deposition subpoena as a nonparty. Because of legislative immunity, legislators normally can't be forced to testify about the legislative process, Corbin said.

As far as representing clients on issues that they might someday have to vote on in their elected roles, lawyer-lawmakers say that's why they are able to disclose any conflicts and abstain from voting if those issues arise.

"Is it appropriate for a senator or representative to engage in litigation as litigants or amicus, or any capacity, when it's a matter of public policy rather than one of individual redress?" asked Rep. Ralph Foley, R-Martinsville, who is an attorney at Foley & Pete. "I don't know. When you have representatives or senators signing up in that kind of litigation, it's often for a policy statement rather than normal bumps and grinds of ordinary life that can go to court between John Doe and Sam Smith. If you're making a policy statement about a particular philosophy on a public policy or legal issue, then that's an appropriate forum and remedy for expressing views."

Foley sees it almost as a priority for legislators to sometimes get involved in important litigation as third-party advocates on issues. In his years as a legislator, Foley said he's signed on to a handful of cases. He doesn't see any potential conflict when lawmakers are expressing their ideas on an issue using the legal system. That's been a tool used on the national level for years, in lining up different kinds of litigation to determine what kind of interpretation would result and what shifts in policy might be needed, he said.

A court in all fairness must look to the specific issues in the case and not count the names or prioritize them, Foley said.

"Litigation is one mechanism that civilized people use to refine their view of policy issues without resorting to guns, knives, and fights in the street," he said. "Trial by combat is more refined when we take it into a courtroom and decide how the law applies as it's written. We write it, but we have to live by it just like everyone else."

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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