To the editor:
Todd Rokita is the attorney general of Indiana. In 2022, he repeatedly and publicly attacked a doctor who provided abortion services in Indiana to a 10-year-old rape victim who was unable to obtain such services in Ohio, in violation of the statute that requires complaints into a doctor “be held in strict confidence until the attorney general files notice with the (Medical Licensing Board) of the attorney general’s intent to prosecute the licensee.” Indiana Code § 25-1-7-10(a).
On Sept. 18, the Disciplinary Commission filed a disciplinary complaint in three counts, Cause No. 23S-DI-00258, alleging violations of the following Indiana Rules of Professional Conduct: Rule 3.6(a), making extrajudicial statements with a substantial likelihood of prejudicing an adjudicative proceeding; Rule 4.4(a), using means that have no substantial purpose other than to embarrass, delay or burden a third person; and Rule 8.4(d), engaging in conduct that is prejudicial to the administration of justice.
Less than two hours after the complaint was filed, Rokita filed a combative answer demanding strict proof of the first two violations and flat out denying violating Rule 8.4(d). We now know how he managed this head-spinning turnaround response: At the very time he filed his answer, the parties submitted a conditional agreement in which Rokita admitted violating Rules 3.6(a) and Rule 4.4(a).
The court approved an agreed public reprimand on Nov. 2, noting: “In exchange for Rokita’s admission to these two violations, the Commission agreed to dismiss a third charged violation.” Opinion at 3. The commission and court agreed to focus on only one of Rokita’s public statements about the doctor despite other similar public attacks.
“In a sworn affidavit attached to the conditional agreement, made under penalty of perjury, Respondent admits these two rule violations and acknowledges that he could not successfully defend himself on these two charges if this matter were tried. Respondent’s acceptance of responsibility is a mitigating factor, as [is] his cooperation with the disciplinary process … .” Opinion at 4-5 (emphasis added). Two justices dissented, “believing the discipline to be too lenient based on the Respondent’s position as Attorney General and the scope and breadth of the admitted misconduct.” Opinion at 4. Every detail of this settlement was undoubtedly carefully negotiated.
Before the ink was figuratively dry on the opinion, Rokita posted on a fiery website response defending his actions, denying misconduct, and asserting falsehoods and direct contradictions to his sworn statements: “Having evidence and explanation for everything I said, I could have fought over (the statement at issue), 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.” (Emphasis added.)
Thus, immediately after admitting to the facts underlying two charges against him, admitting to the violations, acknowledging he could not successfully defend himself against these charges, and stating that his consent was freely and voluntarily given, he publicly disavowed what he had just sworn under oath. By lying in his sworn affidavit, intending to immediately contradict it and submitting it to the court, knowing that the Court would rely on it in approving the CA, Rokita committed perjury. I.C. 35-44.1-2-1.
Rokita began his website response by stating: “I deny and was not found to have violated anyone’s confidentiality or any laws.” This is false. A court had found that he “did violate the licensing statute’s confidentiality provision … .” Order dated Dec. 2, 2022, Bernard v. Rokita, Cause No. 49D01-2211-MI-38101 (emphasis added).
Rokita said “my words are factual” when he called the doctor an abortion activist with “a history of failing to report.” However, there appears to be no evidence that the doctor has any history of failure to report. Instead, he cites speculative allegations in the media. There are additional falsehoods and distortions in his website response.
By this course of action, Rokita violated the following rules:
• Rule 3.3: Knowingly making false statements of fact to a tribunal in the CA.
• Rule 8.4 (b-d): Committing perjury; engaging in dishonest conduct; and engaging in conduct prejudicial to the administration of justice.
By participating and/or assisting in Rokita’s misconduct, his counsel of record, James Ammeen and Christopher Bartolomucci, violated:
• Rule 3.3: Failing to take remedial measures when a client intends to engage in criminal or fraudulent conduct related to a proceeding.
• Rule 3.4: Assisting a witness to testify falsely.
• Rule 8.4 (a): Assisting another to violate the rules.
The commission agreed to, and the court narrowly approved, a very generous CA, finding, “Respondent’s acceptance of responsibility is a mitigating factor.” Opinion at 5. Rokita, however, has not accepted responsibility for his misconduct. Instead, he paints himself as a victim of the media, liberal activists, cancel culture, etc. By implication, he includes the commission and the court among his perceived unjust persecutors. The court found Rokita’s cooperation with the disciplinary process to be a mitigating factor. However, it is evident that Rokita acted in bad faith throughout the process.
Rokita continued his reckless, virulent attacks on the doctor for actions that were legal and for advocacy that is protected by the First Amendment. His incendiary attacks include accusing her of seeking to “to legalize a brutal abortion procedure where the living child is extracted piece by piece.” His first set of attacks precipitated kidnapping threats against her young child. See, The Guardian, July 15, 2022.
Had the commission and the court known Rokita would engage in further misconduct immediately after the court gave him a slap on the wrist, it seems unlikely the commission would have agreed to, and the court would have narrowly approved, the CA.
Having worked in the area of professional responsibility for 10 years, including two years as a staff attorney with the commission, I cannot remember a case in which an attorney has shown such an unrepentant, defiant attitude toward his ethical duties and the disciplinary process.
Rokita’s lack of insight into and his lack of any remorse about his prior misconduct and his resumption of misconduct the day the court approved the CA demonstrate that he is currently unfit to practice law in this state, let alone serve as its chief law enforcement officer. If not stopped, he will predictably double-down with his misconduct. The only way to protect the public, the profession and the administration of justice in this state is suspension without automatic reinstatement, with readmission to practice only if he proves by clear and convincing evidence that:
“(iv) The attorney’s attitude towards the misconduct for which he or she was disciplined is one of genuine remorse; …
(vi) The attorney has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and shall conduct himself or herself in conformity with these standards;
(vii) The attorney can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the courts … .” Admission and Discipline Rule 23, Section 18(b)(3) (emphasis added).•