|Indiana Attorney General Curtis Hill|
The decision was a win for Hill. He immediately praised the Court and turned over operations of the office, for a month, to a deputy. He will likely be eligible to run for re-election this year. Still, some of the factual findings of the Court will give his GOP convention opponent fodder to argue Hill should be replaced on the ticket. Should Hill be renominated, state Democrats will no doubt make him a top target in the fall.
With the decision, the Disciplinary Commission's suffered another blow to its credibility. The Commission had sought to have Hill suspended for two years, without automatic reinstatement. (Note: When a suspension decision is without automatic reinstatement, that means the actual suspension might be considerably longer than what is first advertised.) The Hearing Officer, former Indiana Supreme Court Justice Myra Selby, had only recommended a 60 day suspension, albeit also without automatic reinstatement.
As I have previously noted, my experience is that the Disciplinary Commission expects attorneys to immediately admit guilt when accused by the Commission and to throw themselves on the Commission's mercy. When an attorney refuses to do that, the Disciplinary Commission leadership and some of its attorneys take it very, very personally, which results in a much more aggressive prosecution and the Commission seeking much greater punishment.
I know that all too well. In my case, the Disciplinary Commission, unbelievably, pushed for a year's suspension, without automatic reinstatement, because I had gotten a couple minor facts wrong in a private emails I had written to opposing counsel criticizing a judge's mishandling of an estate case that likely cost my client hundreds of thousands of dollars. As in the Hill case, the Indiana Supreme Court completely rejected the Commission's position and decided on a 30 day suspension, with automatic reinstatement. By my review of disciplinary cases, the Commission appears to have spent more money going after me that year than any other attorney targeted for discipline that year, including attorneys who absconded with thousands of dollars from their clients' trust funds.
The Hill disciplinary prosecution raises troubling questions. While it is no doubt true that uncharged criminal behavior is covered by the attorney disciplinary rules, should the rules regulating attorney conduct be applied more strictly if the attorney is a public official? If a private attorney were accused of groping women at a party, I find it highly unlikely the Disciplinary Commission would have had any interest in pursuing the case. That does not mean the attorney gets a pass for his conduct. Rather, it is that the proper forum for sanctioning that conduct is criminal prosecution or a civil lawsuit by the victims.
Hill could have been charged with a crime for the alleged groping. The Marion County Prosecutor, however, apparently didn't think the evidence warranted Hill being charged. As Attorney General, Hill could have also been impeached and removed from office. There was a lack of support in the General Assembly to take that step. So with no criminal charges and no impeachment, the unelected leadership of the Disciplinary Commission stepped in to try accomplish what the elected prosecutor and elected legislators refused to do - effectively remove Hill, also an elected official, from office and bar him from running for re-election.
Unfortunately, in the Hill decision, the Indiana Supreme Court does suggest attorneys who are public officials should be held to a higher standard under the disciplinary rules than private attorneys. There are already specific ethics rules that apply to the conduct of prosecutors and judges. Prosecutors are specifically obligated to follow Rule 3.8 of the Rules of Professional Conduct in addition to the other attorney disciplinary rules. Judges meanwhile have an entire set of ethics rules, the Judicial Code of Conduct, they must follow.
It is a slippery slope to enforce the ethics rules differently when the accused attorney is a public official and when the attorney is a private citizen. Public officials who are attorneys, especially those in elected office, are by the nature of their jobs already targets of attorney disciplinary complaints. Unfortunately, the Hill decisions sends a signal to the public that the disciplinary process can be used to target those officials for accusations of misconduct unrelated to the actual work of an attorney. That opens the floodgates for such accusations. When that happens (and I would argue it already has happened) the Commission is put in the unfortunate position of arbitrarily rejecting some of those allegations against public officials while pursuing others.
The disciplinary process for Indiana attorneys should not involve arbitrary, uneven enforcement of the rules, including treating public officials who are attorneys harsher than those in private practice. When it comes to ethics rules, attorneys need bright lines so they know what is right and what is wrong, and the penalty they face must be consistent when they do cross those bright lines. Unfortunately, there is zero consistency in the Indiana attorney disciplinary process. And too often disciplinary decisions are driven by the personal animus Commission leadership and its attorneys develop toward the attorneys whose conduct they are supposed to be overseeing.
I applaud the Indiana Supreme Court for its professional, unbiased approach it took toward handling the accusations against the Hill. Nonetheless, the decision does seem to be a bit of a compromise that glosses over continued problems with the disciplinary process. The time is long past for the Indiana Supreme Court justices to take ownership of the disciplinary process for attorneys and institute much needed reform. We attorneys need a disciplinary process that is professional, objective and fair. What we have right now is anything but that.