By Marilyn Odendahl
The Indiana Citizen
July 11, 2024
Indiana Attorney General Todd Rokita is being asked to respond to another disciplinary grievance filed against him, this time for statements he made during a news conference about the terminated pregnancy reports filed with the Indiana Department of Health.
This is the third known disciplinary investigation into Rokita’s conduct since he was elected attorney general in 2020.
Indianapolis attorney William Groth filed this latest grievance with the Indiana Supreme Court Disciplinary Commission, after an April news conference Rokita gave during which he publicized his office’s official opinion on the terminated pregnancy reports, or TPRs. Groth asserted Rokita violated the state’s rules for professional conduct for attorneys by rendering an opinion about the TPRs when the health department had not asked for any legal advice on that matter and by suggesting that members of the public could sue the department if they are not allowed access to the TPRs.
“No former attorney general has or would even think of publicly encouraging or suggesting that members of the public sue an agency of the state which that attorney general has a statutory duty to represent,” Groth wrote in his grievance.
The attorney general’s office declined to comment.
The disciplinary commission sent a letter to Rokita on July 1, notifying him of the grievance and demanding he provide a written response within 30 days.
In November 2023, Rokita received a public reprimand from the Indiana Supreme Court at the conclusion of the disciplinary commission’s first investigation into his conduct during his office’s investigation of Indianapolis OB/GYN Caitlin Bernard. A second preliminary investigation into the comments he made after his public reprimand appears to be continuing, and now a third preliminary investigation has been launched.
The attorney disciplinary investigation is a secretive process. Grievances can be filed, reviewed and dropped without the commission informing the public. However, if the preliminary investigation indicated a problem, the commission will open a formal investigation and could eventually file a grievance with the Indiana Supreme Court.
Attorney who are found to have engaged in misconduct face sanctions ranging from a private reprimand to suspension of their license to practice law to disbarment.
‘You could be filing a lawsuit’
Under Indiana state law, the attorney general’s duties include defending the state and state officials against all lawsuits brought by outside parties. However, Groth’s grievance asserted that Rokita seemed to invite the public to sue his client, the Indiana Department of Health.
At issue is the health department’s decision to no longer make available the terminated pregnancy reports. These reports are filed by physicians whenever they provide abortion care and, prior to Indiana’s near-total abortion ban taking effect in August 2023, they were accessible by the general public. Now that the number of abortions being reported to the state has dropped dramatically, the department determined that releasing the TPRs could, potentially, provide enough information to identify the women who had ended their pregnancies.
In its own analysis, the Indiana public access counselor agreed. The counselor said the information contained in the TPR is part of a patient’s medical record and, therefore, medical privacy laws apply.
The attorney general’s office put together its own opinion on the matter at the request of state Sen. Andy Zay, R-Huntington.
Groth contended in his grievance that Rokita rendering an opinion about the TPRs for Zay violated professional conduct rule 2.1, which, in comment 5, states a lawyer is not expected to give legal advice unless asked. Here, Groth said, the health department did not ask Rokita for his legal advice about the reports.
At the news conference broadcast on social media, Rokita discussed his office’s opinion, which, contrary to the health department and the public access counselor, found that TPRs are public records and should be released to whomever files a request.
Rokita said the TPRs allow for oversight to ensure that the abortions performed by physicians in Indiana comply with state law. But to investigate a possible violation of the abortion law, he said, his office has to wait for a grievance from a member of the public to be filed. The attorney general cannot “willy nilly” rove around the state and launch investigations, he said.
Without the public being able to access these reports, Rokita said, his office cannot enforce Indiana’s abortion prohibitions. Then he told the audience that individuals have a private right of action to get the TPRs.
“If you’re a citizen, if you asked for these reports and you were denied them, you could be filing a lawsuit against the state of Indiana,” Rokita said.
Groth asserted in his grievance that Rokita’s suggestion that individuals sue the state violated professional conduct rule 2.3, sections (a) and (b). Rokita was giving an evaluation of a matter, Groth said, that was not only incompatible with his relationship as an attorney representing his client (the health department) but was also likely given without the client’s (i.e. the department’s) informed consent.
“It is well-settled that a lawyer commits a breach of trust going to the very essence of the attorney-client relationship when that lawyer takes a position adverse to that of his client,” Groth wrote in his grievance.
Repeated disciplinary grievances
Since the attorney general’s news conference, Voices for Life, a nonprofit based in South Bend, has filed a lawsuit against the health department for the terminated pregnancy reports. The organization stated in its grievance that “Attorney General Rokita made clear that without public access to TPRs, his office would be unable to enforce Indiana’s new abortion law.”
Lewis and Wilkins, an Indianapolis law firm which has a $13.13 million contract with the attorney general’s office, has been assigned by Rokita to defend the health department. In June, Drs. Caitlin Bernard and Caroline Rouse were granted permission to intervene in the case.
The doctors argued the TPRs contain all of the patient information that Bernard was reprimanded for by the Medical Licensing Board of Indiana for revealing. Groth and the public access counselor make the same observation.
In the summer of 2022, Bernard disclosed to The Indianapolis Star that she had performed an abortion on a 10-year-old Ohio girl who was six weeks and three days pregnant after being raped. Rokita, subsequently, made several public statements, saying his office was investigating Bernard.
His actions resulted in the first disciplinary investigation. It concluded with a 3-2 majority of the Indiana Supreme Court accepting a conditional agreement in which Rokita was reprimanded for appearing on Fox News and calling Bernard “an abortion activist acting as a doctor” with a history of failing to file her medical reports as required by state law.
The day he was reprimanded, Rokita issued a defiant response. He said his statements about Bernard had been “truthful” and he agreed to the reprimand to bring the case to a conclusion in order to save taxpayers money.
That response resulted in the disciplinary commission opening a second preliminary investigation into Rokita. Groth and attorney Paula Cardoza-Jones each filed grievances, questioning whether Rokita was sincere and contrite when he entered into the conditional agreement
In March, the disciplinary commission issued letters to Groth and Cardoza-Jones that indicate it has found “reasonable cause” to believe Rokita’s conduct post-reprimand did violate the rules of professional conduct.
Groth filed his grievance over the TPRs April 23. Whether any other grievances have been filed regarding Rokita’s news conference is not known. When the disciplinary commission will finish the two latest investigations is also not known.
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
