Indiana Suspends State Attorney General

The Indiana Supreme Court has suspended the state Attorney General for 30 days. with automatic reinstatement

We find, as did the hearing officer, that Respondent committed acts of misdemeanor battery, conduct that under the circumstances of this case violated Indiana Professional Conduct Rules 8.4(b) and 8.4(d).

The facts

At the conclusion of the 2018 Indiana legislative session, several legislators, lobbyists, and legislative staff attended an event at a local bar. Respondent also attended this event at the invitation of a lobbyist with whom Respondent had been dining and drinking that evening. While at the event, Respondent engaged in acts against four women—a state representative and three legislative assistants—that involved various forms of nonconsensual and inappropriate touching. More specifically, as summarized by the hearing officer, Respondent:

(a) “Touch[ed] [M.R.’s] bare back, rubbing his hand down her back down to or just above her buttocks without her consent. He did not accidentally or inadvertently rub [M.R.’s] back down to her mid to low back.”

(b) “Rub[bed] [G.B.’s] back without her consent. He did not accidentally or inadvertently rub [G.B.’s] back.”

(c) “Put[ ] his arm around [S.L.’s] waist and pull[ed] her toward him without her consent. He did not inadvertently touch [S.L.] and pull her to him.”

(d) “Touch[ed] [N.D.’s] back, moving his hand down her back and moving [N.D.’s] hand toward her buttocks and touching her buttocks without her consent. He did not accidentally or inadvertently touch [N.D.’s] back and move his hand down her back toward her buttocks.”

The principle issue was whether the conduct violated Indiana Rule 8.4(b), which provides that it is misconduct to 

commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects

While a conviction is not required, not all criminal violations violate the rule. Rather, there must be a nexus between the offense and the qualities that reflect adversely on the attorney. 

The case was apparently hotly contested

At the outset, we are compelled to note our strong disapproval and extreme disappointment with respect to the tenor of the parties’ briefs in this case. The Commission repeatedly refers to Respondent in hyperbolic terms of sexual predation, and the Commission—entirely without support—accuses Respondent of having committed perjury at the final hearing simply because the hearing officer, in endeavoring to reconcile all the testimony (including Respondent’s), found that Respondent’s conduct amounted to battery. Respondent for his part alternately describes the Commission using terms such as “imperialist,” “coddling,” “dismissive,” and “arrogant,” and Respondent devotes far too much of his briefing to entirely unfounded attacks on the Commission’s motives and integrity. There are many legitimate legal arguments to be made in this case, which makes the parties’ inappropriate ad hominem attacks on one another a particularly frustrating distraction. We expect counsel to behave better in future cases.

The conduct amounted to a criminal battery

At the end of the day, whether Respondent possessed the requisite mens rea was a question of fact to be determined by the hearing officer; and the long, lingering, and meandering touches described by the four women and others, the various reactions of those who experienced or observed those touches, and the numerous other accounts of Respondent’s conduct at the bar, all offer ample support for the hearing officer’s ultimate finding on this point.

And reflected adversely on fitness to practice

Respondent’s own testimony brings his criminal conduct directly within the ambit of the performance of his professional duties. Respondent went to the party with the purpose of discussing a bill affecting his office with key legislators and nurturing goodwill, he spent time at the party doing precisely these things, and while there he committed battery against a legislator and three legislative staffers. The nexus in this case is little different than the nexus in Robertson (OWI on the way to the courthouse for a hearing and battery on a court receptionist) or in May (battery in the courthouse following a hearing), and it is more than sufficient to establish a violation of Rule 8.4(b).

Sanction

At the end of the day, Respondent urges that “similar cases should be treated similarly” and that we should treat him no better or no worse than any other attorney. (Br. in Supp. of Pet. for Rev. at 51-52). In light of our consideration of the nature of Respondent’s misconduct, the aggravating and mitigating circumstances, and the short suspensions with automatic reinstatement we imposed on the attorney who battered his client (May),  the prosecutor who battered his romantic partner (Walker), and the judge who battered a third party (Adams), we conclude that a similar result should obtain here.

The Indiana Lawyer (Olivia Covington)  covered the decision. (Mike Frisch)