29 Indiana law school professors sign on to letters criticizing AG Rokita’s conduct

More than two dozen Indiana law school professors are condemning Indiana Attorney General Todd Rokita for the recent “false and misleading” statements he made toward a Hoosier doctor who performed an abortion for a 10-year-old Ohio girl.

Twenty-nine law school professors, from Indiana University Maurer School of Law, IU Robert H. McKinney School of Law and Notre Dame Law School signed on to one or both letters sent July 18 and July 22 to the attorney general addressing his comments about Dr. Caitlin Bernard. While listing their employers and official titles with their signatures, the letters state the professors are representing themselves in their individual capacities.

On July 18, 14 law professors — 13 from IU McKinney and one from Notre Dame — sent a letter to Rokita saying they were “distressed” by the attorney general’s July 13 and July 14 statements about Bernard, and his maintenance of those statements “without correction” on his official government webpage and Twitter account. Three additional law professors from IU Maurer were added to the list of signees by July 19.

The Ohio girl’s abortion story has become a flashpoint in the national debate over abortion access, with Rokita entering the conversation on July 13 after sending Gov. Eric Holcomb a letter stating that his staff was investigating whether Bernard had failed to report the sexual assault of a minor to state authorities.

Rokita then made an appearance on the Fox News program “Jesse Watters Primetime” and claimed Bernard had a “history of failing to report” and said his office was gathering evidence that Bernard, who has previously spoken publicly about her support for abortion rights, failed to report the procedure.

The following day, multiple media outlets published copies of the pregnancy termination report confirming Bernard had reported the incident as required by law. IU Health, Bernard’s employer, also stated it had completed an investigation and found the doctor hadn’t violated any privacy laws in her actions in the Ohio girl’s case.

On July 22, the 27-year-old Ohio man who allegedly raped the girl was charged with two felony counts of rape in an indictment.

The July 18 letter from the educators referenced Indiana Rule of Professional Conduct 3.8, “Special Responsibilities of a Prosecutor,” as well as rules 4.1 and 8.4, and states that Rokita has continued to publish statements “even after they were shown to be false and misleading.”

“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 letter states. “This would set a very good example for law students and for other lawyers in the State of Indiana.”

Florence Wagman Roisman, the William F. Harvey professor of law and chancellor’s professor at IU McKinney, drafted the first letter. Roisman said on July 21 that she hadn’t yet received a response from the attorney general and that it’s not normal for a group of law professors to send a letter to the state’s top legal official like this.

“It’s outrageous. It’s inappropriate. It’s unprofessional. It’s unethical. It’s wrong,” Roisman said of Rokita’s conduct. “And as I said in the letter, it sets a terrible example for law students and for other lawyers. … We don’t want our students to think that that’s appropriate conduct — because it isn’t.”

Three days before the professors’ letter was delivered, former IU Bloomington provost and IU Maurer dean Lauren Robel sent a request to the Indiana Supreme Court Disciplinary Commission to investigate Rokita’s conduct.

In a statement to IL on Monday, a spokesperson for Rokita’s office said Robel’s complaint was “without basis” and that the attorney general was still investigating whether Bernard was “in compliance with Indiana and federal privacy laws.”

Regarding the July 18 letter, a spokesperson for the attorney general told IL it was “part of a divisive narrative and an attempt to distract from the important work of the office, including the duty to determine whether practitioners have violated the standards of practice in his or her profession, as well as federal and state laws. We will defend against baseless claims.”

Inspired by Robel’s comments, 13 professors — who all teach at IU Maurer — sent a letter to Rokita on July 22 condemning his statements. One IU Maurer professor, Steve Sanders, signed on to both letters.

Unlike the July 18 letter, the July 22 message heeded Robel’s call for an investigation by the Disciplinary Commission into Rokita.

“The uncontroverted facts indicate that Dr. Bernard did indeed comply with all her duties to disclose, report, and protect sensitive health information.  These facts were easily ascertainable, but you chose to make public statements before exercising due diligence,” the letter states.  “… As a direct result of your public statements, Dr. Bernard was maligned and continues to experience well-founded fear for herself and her family.

“… Such behavior is troubling for any lawyer, but particularly so for the state’s Attorney General charged with investigating misconduct by professionals,” the letter continues. “The power of your office comes with added responsibilities to investigate facts in advance, maintain confidentiality until you decide to challenge a professional license, and avoid unfair prejudice toward individual citizens.  Your unfounded statements smack of partisanship; your impugning of Dr. Bernard’s character does not comport with the even-handed, deliberate, professional conduct that citizens of Indiana have a right to expect from their Attorney General.”

The July 22 letter was drafted by Aviva Orenstein, the Karen Lake Buttrey and Donald W. Buttrey chair at IU Maurer.

“What we try and teach our students is that (lawyers) have a really sacred obligation to the rule of law,” Orenstein told IL. “… You exercise care, you don’t throw things out and open people to threats. It’s remarkable to me.”

While she said she isn’t sure if she’ll get a response from the attorney general, Orenstein said she hopes Rokita makes a public apology.

“(Rokita) has to recognize that he can’t let his political partisanship bleed into his official capacity,” she said. “… Follow the rules, show people dignity and show a sense of gravitas. Don’t just keep on grabbing the mic … before you know what’s going on.”

The attorney general’s office did not respond to a request for comment on the July 22 letter by IL deadline.

Steps toward a potential lawsuit against Rokita by Bernard commenced earlier this week.

On July 19, Bernard sent a tort claim notice to Rokita requesting damages for “ongoing” harm from the attorney general’s comments. Kathleen DeLaney of the Indianapolis firm DeLaney & DeLaney LLC filed the notice seeking an undetermined dollar amount for security costs, legal fees, reputational harm and emotional distress.

Pursuant to Indiana Code § 34-13-3-11, if Rokita doesn’t respond within 90 days of the notice, the claim is considered denied and Bernard could file a defamation lawsuit.

Rokita is currently in good standing with the Indiana Supreme Court. The Indiana Roll of Attorneys shows no disciplinary action against him since he was admitted to the Indiana bar in 1995.

Editor’s note: This article has been updated and corrected.

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