Indiana AG’s Reprimand Highlights Bias Against Conservatives in State Bars.
The Indiana Supreme Court issued a reprimand of the state’s conservative attorney general on Thursday for comments he made about an abortionist during a July 2022 Fox News interview. While the public reprimand may not seem like a big deal, it is. It represents yet another example of the weaponization of state bars.
On Thursday, the Indiana Supreme Court issued a six-page opinion in a disciplinary complaint docketed as “In the Matter of Theodore E. Rokita.” Rokita, who goes by Todd, is the state’s Republican attorney general.
As the Indiana Supreme Court’s opinion explained, on July 13, 2022, Rokita “appeared on a national television program to discuss an Indiana physician who had performed an abortion on a ten-year-old rape victim from Ohio.” That appearance, on Jesse Watters’ Fox News program, followed a public outcry over abortionist Caitlin Bernard publicly discussing an abortion she had performed on a 10-year-old rape victim.
Bernard’s disclosure of her patient’s private medical information seemed a transparent attempt to influence Indiana’s abortion law. It came mere weeks before the Indiana General Assembly prepared for a special session to consider enacting measures to protect the unborn in the wake of Roe’s reversal.
The Indianapolis Star included details of the abortion in a July 1 pro-abortion piece that opened with a vignette Bernard had relayed to a Star reporter at an abortion rally:
On Monday three days after the Supreme Court issued its groundbreaking decision to overturn Roe v. Wade, Dr. Caitlin Bernard, an Indianapolis obstetrician-gynecologist, took a call from a colleague, a child abuse doctor in Ohio.
Hours after the Supreme Court action, the Buckeye state had outlawed any abortion after six weeks. Now this doctor had a 10-year-old patient in the office who was six weeks and three days pregnant.
Could Bernard help?
After noting that such abortions were still legal in Indiana, the Star reported that “the girl soon was on her way to Indiana to Bernard’s care.”
Left unsaid was that the girl was raped by her mother’s boyfriend and that the victim’s mother then took her young daughter to Indiana for the abortion.
Bernard finished her story by noting, “It’s hard to imagine that in just a few short weeks we will have no ability to provide that care.”
The Indianapolis Star’s story set off a firestorm, prompting questions about whether Bernard had reported the rape to state officials, as required. During the ongoing public debate, Rokita appeared with Jesse Watters, with the Fox News host noting that Bernard had “a legal requirement to report the abortion to both child services and the state’s health department.” “From what we can find out so far,” Watters continued, “this Indiana abortion doctor has covered this up.”
“Failure to report is nothing new, though, for Dr. Bernard. According to reporting from PJ Media, she has a history of failing to report child abuse cases.” Watters then queried, “So, is a criminal charge next? And will Dr. Bernard lose her license?,” before saying, “Let’s ask the Indiana attorney general, Todd Rokita.”
Rokita responded: “We have the rape. And then we have this abortion activist acting as a doctor — with a history of failing to report. So, we’re gathering the information. We’re gathering the evidence as we speak, and we’re going to fight this to the end, including looking at her licensure if she failed to report. In Indiana, it’s a crime for, to not report — to intentionally not report.”
After the segment ran, the former dean of Indiana University’s law school, Lauren Robel, and a former executive director of the disciplinary commission, filed complaints against Rokita, claiming he violated the state’s rules of professional responsibility governing attorneys.
The state of Indiana would later file an administrative complaint against Bernand, claiming she violated patient privacy law and failed to report the rape in a timely fashion. On June 27, 2023, the Indiana Medical Licensing Board found Bernard had committed three violations of patient-privacy law by discussing the details of the 10-year-old’s abortion, but found no violation of the reporting law. The board reprimanded Bernand and fined her $3,000.
Less than three months later, the Indiana Supreme Court Disciplinary Commission issued a complaint against Rokita. It claimed his appearance on Fox News violated the rules of professional conduct because he should have known they would “have a substantial likelihood of materially prejudicing an adjudicative proceeding,” and because his comments had no purpose other than to “embarrass, delay, or burden a third person…” The disciplinary complaint also charged that the attorney general’s conduct was “prejudicial to the administration of justice.”
Rather than fight the charges, Rokita entered into a conditional agreement with the commission, admitting that his statement that Bernard was an “abortion activist acting as a doctor — with a history of failing to report,” constituted attorney misconduct, with the parties agreeing to a public reprimand as discipline.
On Thursday, the Indiana Supreme Court entered an opinion concluding that branding Bernard an “abortion activist acting as a doctor — with a history of failing to report,” violated the governing rules of professional conduct because the AG sought to “embarrass, delay, or burden” the abortionist. The opinion similarly concluded that Rokita should have known his comments would have a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The Indiana Supreme Court then agreed by a 3-2 vote to publicly reprimand Rokita. He was also fined $250.
Two of the Indiana Supreme Court justices dissented, saying they “would reject the conditional agreement, 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.”
If one of the three Indiana Supreme Court justices had voted with the dissent, the state’s attorney general could have faced a suspension from practicing law for, as Rokita put it after Thursday’s opinion came out, his “truthful 16-word answer.”
And that should chill conservatives — for it is conservative lawyers facing the brunt of the weaponization of the bar, whether it be former Assistant Attorney General Jeff Clark, Texas Attorney General Ken Paxton, or former law professor John Eastman.
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How does the weaponization of state bars’ power to impose disciplinary actions on attorneys based on political considerations threaten free speech and open discourse within the legal profession
Explaining that she wanted to share it in order to highlight the importance of access to safe and legal abortion services for young girls. However, her decision to disclose confidential medical information and use it as a political tool garnered criticism and sparked a public debate.
In response to Bernard’s actions, Attorney General Rokita appeared on Fox News to discuss the case. During the interview, he expressed his concerns about Bernard’s disclosure of private medical information and questioned her motives behind it. Rokita’s comments were seen as an attempt to shed light on the ethical implications of using a sensitive case for political gain.
The Indiana Supreme Court’s reprimand of Attorney General Rokita raises several important issues regarding the state bar’s involvement in disciplinary actions. While the court acknowledged that Rokita’s comments were inappropriate and potentially violated certain rules of professional conduct, they also noted that the public reprimand was not the appropriate remedy for his conduct.
This decision highlights the growing trend of state bars weaponizing their power to impose disciplinary actions on attorneys based on political considerations. Instead of focusing on the actual violation of professional conduct rules, these actions seem to be driven by a desire to silence opposing viewpoints and punish attorneys for expressing their opinions.
The weaponization of state bars poses a threat to the fundamental principles of free speech and open discourse. Attorneys, like any other professionals, should be allowed to express their opinions without fear of reprisal or professional consequences. When disciplinary actions are used as a means to suppress dissent or control the narrative, it undermines the integrity of the legal profession and erodes the public’s trust in the legal system.
Furthermore, the reprimand of Attorney General Rokita sends a concerning message that attorneys can be punished for expressing opinions that may be deemed politically incorrect or unpopular. This not only stifles the diversity of thought within the legal profession but also undermines the principle of zealous advocacy, which is a cornerstone of our justice system.
It is crucial that disciplinary actions against attorneys are based on objective and fair criteria, rather than political considerations. The legal profession plays a vital role in upholding the rule of law and protecting individual rights, and attorneys should be allowed to fulfill their duty without fear of professional repercussions for expressing their opinions.
In conclusion, the reprimand of Attorney General Rokita by the Indiana Supreme Court highlights the concerning trend of state bars weaponizing their power to impose disciplinary actions based on political considerations. This undermines the principles of free speech and open discourse, as well as the integrity of the legal profession. It is imperative for the legal community to uphold the values of objectivity, fairness, and diversity of thought in order to maintain the public’s trust and safeguard the fundamental principles of our justice system.
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