State Supreme Court: Rokita engaged in attorney misconduct

Nov. 2—The Indiana Supreme Court on Thursday ruled Attorney General Todd Rokita "engaged in attorney misconduct" when he spoke on television about an Indiana physician who performed an abortion on a 10-year-old rape victim from Ohio.

During that July 2022 Fox News appearance, Rokita described Dr. Caitlin Bernard, an Indianapolis-based obstetrician/gynecologist and Indiana University School of Medicine assistant professor, as an "abortion activist acting as a doctor — with a history of failing to report."

The court wrote, "Respondent (Rokita) admits, and we find, that he engaged in attorney misconduct by making this statement."

The matter was before the court as a proposed agreement between the Indiana Supreme Court Disciplinary Commission and Rokita.

The court approved the agreement and the proposed discipline, which consists solely of a public reprimand. Rokita also must pay $250 court costs. The commission's investigation costs remain to be determined.

The court said Rokita violated the code of conduct rules for Indiana attorneys in two ways, by "making an extrajudicial statement that had a substantial likelihood of materially prejudicing an adjudicative proceeding and (in that he) had no substantial purpose other than to embarrass or burden the physician."

A third alleged violation was dropped as part of the proposed settlement.

The court noted that Rokita admitted two rule violations and acknowledged that he could not successfully defend himself on those two.

The court noted Rokita's acceptance of responsibility was a mitigating factor, as was his cooperation during the disciplinary process, as well as a lack of prior discipline during a lengthy career.

But, the court wrote, that same experience also "'counsels that he should have known better' than to conduct himself in the manner he did.'"

Three of the five justices — Mark Massa, Geoffrey Slaughter and Derek — concurred on the discipline proposed in the settlement.

Chief Justice Loretta Rush and Justice Christopher Goff dissented, with the court's opinion noting that they thought "the discipline to be too lenient based on the Respondent's position as Attorney General and the scope and breadth of the admitted misconduct."

They did not publish separate opinions.

Rokita on Thursday morning issued a lengthy response saying among other things, that he violated no one's confidentiality nor any law, that he was factually accurate and that he would continue as Indiana's attorney general.

The Republican attorney general blamed the "media, medical establishment and cancel culture" for trying to derail the work of Indiana abortion opponents, himself included.

He said the disciplinary complaint and resulting agreement before the court, "all boiled down to a truthful 16-word answer I gave over a year ago during an international media storm caused by an abortionist who put her interests above her patient's."

The attorney general continued to focus on Bernard, writing paragraphs about her speaking at abortion rights events, appearing in the media, lobbying the Legislature and even referencing a tattoo.

"I challenge any objective Hoosier to conclude that she isn't an 'abortion activist,' as I stated," he wrote.

Bernard was reprimanded by Indiana's medical licensing board in May, saying she didn't abide by privacy laws by speaking publicly about the girl's treatment. The board also fined her $3,000. It did not act on her ability to practice.

Gerson Fuentes, 28, who confessed to raping and impregnating the Ohio girl, was sentenced to life in prison in July.

The Rokita/Bernard fight has resulted in other litigation.

Bernard at one point sued the attorney general, seeking to block Rokita's attempt to access her records. The judge in that Marion County case declined to issue an injunction, and the lawsuit eventually was shelved when Bernard's case went before the medical licensing board.

Marion County Superior Court Judge Heather Welch did at one point in that case find Rokita wrong to make public comments about investigating Bernard before a complaint had been filed.

Welch said Rokita's statements were "clearly unlawful breaches of the licensing investigations statute's requirement that employees of the Attorney General's Office maintain confidentiality over pending investigations until they are so referred to prosecution."

The attorney general also in mid-September of this year sued the state's largest hospital system, claiming it violated patient privacy laws in the same medical case.

That suit names Indiana University Health and IU Healthcare Associates. It alleges the hospital system violated HIPAA, the federal Health Insurance Portability and Accountability Act, and a state law for not protecting the patient's information.

Hill's predecessor in the attorney general's office also was disciplined by the Supreme Court.

In May 2020, the Indiana Supreme Court suspended then-Attorney General Curtis Hill's law license for 30 days. It found that Hill groped four women at an Indianapolis bar in March 2018. Hill denied the allegations.

Hill ran for re-election in 2020, but was defeated at the Republican nominating convention by Rokita, who is up for re-election in 2024. Hill is now seeking the GOP nomination for Indiana governor.

— Indiana Capital Chronicle and The Associated Press contributed background information regarding the previous Rokita/Bernard legal cases.

Contact Mark Fitton at 812-231-4333 or mark.fitton@tribstar.com.