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Takeaways and outliers in misconduct charges against Indiana AG Rokita

Photo caption: Indiana Attorney General Todd Rokita

Indiana Attorney General Todd Rokita succeeded an attorney general who was disciplined by the Indiana Supreme Court for unprofessional conduct. A week ago, that same court announced Rokita had been charged with misconduct by its Disciplinary Commission.

The Disciplinary Commission is the section of the Indiana Supreme Court that sets guidelines for lawyers’ professional conduct. It is made up of Indiana residents appointed by the court, seven lawyers and two non-lawyers.

Curtis Hill, Rokita’s predecessor, was disciplined for what he did – inappropriately touching 4 women at a holiday party. The current attorney general is under investigation for what he said about an Indiana physician who, in June 2022, performed an abortion on a 10-year-old Ohio girl.

The attorney general’s words and actions that led to the charges against him of violating legal rules of confidentiality spread light on Indiana’s court proceedings. Whereas, the prosecuting side should not make comments or statements on a case until charges are filed, it is not so with defendants.

Donald Trump is a good example. In the last year, Trump has been named in four criminal cases.

Before charges were filed, the former president had broadcast his being the subject or connected with investigations in New York and Georgia, and in two federal investigations. Trump told the media his Mar-a-Lago home in Florida was going to be searched in the Dept. of Justice investigation into his retention of classified documents. The DOJ did not comment. It was similarly quiet when Trump announced he was a target of the DOJ investigation into his efforts to interfere with the certification of the 2020 presidential election. Only after the charges were filed, did the DOJ make statements.

The Disciplinary Commission’s complaint filed last week, on September 18, lays out 32 facts it used to build the charges, concluding AG Rokita violated the state’s professional conduct rules for attorneys. That same day, AG Rokita answered the complaint with his own filing to the Supreme Court, responding to each of the commission’s facts and charges, admitting to some and disputing others.

In background facts leading to the misconduct charges, the complaint states, “On July 1, 2022, the Indianapolis Star published an article, “Patients Head to Indiana for Abortion Services as Other States Restrict Care.” The story discussed an Indiana physician, Dr. Caitlin Bernard, performing an abortion on a ten-year old from Ohio who was six weeks and three days pregnant, and quoted Dr. Bernard in the story.”

The story made headlines across the nation.

The Commission’s complaint says Dr. Bernard submitted a termination of pregnancy report to the Indiana Dept. of Health and sent a copy to the Indiana Dept. of Child Services on July 2, 2022.

Within days, the Commission’s complaint says, the attorney general’s office notified Dr. Bernard that she was the subject of consumer complaints that cited the abortion on the 10-year-old, and that the office was opening an investigation.

Attorney General Rokita appeared on Fox News’ Jesse Watters show on July 13, the complaint states, where he called Dr. Bernard an “abortion activist acting as a doctor, with a history of failing to report.” Rokita added, “We are gathering evidence as we speak, and we’re going to fight this to the end, including looking at her licensure if she failed to report.”

The Disciplinary Commission said Rokita’s television appearance, more statements he made and actions he directed others to take during the summer of 2022 on the Bernard investigation resulted in its charges of misconduct. AG Rokita didn’t file charges against Bernard until November 30, 2022.

The Commission cited in its complaint a November 3, 2022 motion filed by Dr. Bernard and co-plaintiff Dr. Amy Caldwell, also an OB-GYN. Both are employees of IU Health Physicians and the Indiana University School of Medicine. The doctors sought a court order requiring AG Rokita to comply with confidentiality rules in investigations his office had initiated on each. The plaintiffs also asked the court to stop Rokita from continuing to investigate pending consumer complaints each had received.

AG Rokita opposed the inclusion of the Bernard-Caldwell lawsuit because the motion was dismissed by the Marion County Court and the plaintiffs pulled their lawsuit in December 2022. Rokita said, “Under Indiana law, when causes of action are voluntarily dismissed, such causes of action are treated as if they never happened.”

In that lawsuit, Dr. Caldwell presented evidence that a division of the attorney general’s office modified a consumer complaint that made her the target of an investigation.

The original complaint received on April 15, 2022 by the attorney general’s Consumer Protection Division was filed against Planned Parenthood Indiana-Georgetown for performing an abortion outside Indiana’s time frame. Planned Parenthood’s name was replaced with Dr. Amy Caldwell’s name, the lawsuit stated.

Subsequently, in May 2022, Dr. Caldwell was notified she was being investigated. The doctor replied that a clerical error had been made. That didn’t end the investigation, Caldwell stated; instead the attorney general used the consumer complaint to issue at least 3 subpoenas seeking records on her patients.

The attorney general closed the Caldwell investigation without filing charges on November 16, 2022, days after Bernard and Caldwell filed their lawsuit.

The trial judge in the Bernard-Caldwell lawsuit said the evidence presented by Caldwell raised serious concerns about how the division modified a consumer complaint. The judge said the court would not review the events that led to the investigation of Dr. Caldwell because the complaint was closed.

AG Rokita filed charges against Bernard with Indiana’s Medical Licensing Board on November 30, weeks after Bernard and Caldwell filed their lawsuit.

In May 2023, the Medical Licensing Board voted to issue Dr. Bernard a letter of reprimand for talking to the reporter about the child’s abortion and a fine of $3,000. The board turned down Rokita’s request to suspend Bernard’s license.

The Disciplinary Commission does not make any decisions. A hearing may be held looking into the allegations of misconduct, or the commission and Rokita could reach an agreement and present it to the Supreme Court. The justices will ultimately determine if any misconduct has occurred and what sanction is warranted.

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