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."