Hill, Disciplinary Commission Spar Over Hearing Officer Appointment

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Olivia Covington for www.theindianalawyer.com

Indiana Attorney General Curtis Hill is hitting back at the lawyer ethics charges filed against him this week, arguing the judicial branch is wading into political waters by possibly disciplining him for allegations of groping four women — claims he says were “unrelated to the practice of law.”

The Indiana Supreme Court Disciplinary Commission filed a formal complaint against Hillwith the Supreme Court on Tuesday, and already the two parties — Hill as the defense and the commission as the prosecution — have begun a procedural battle in court filings. In a motion filed Wednesday, Hill urged the Indiana Supreme Court to decline to appoint a hearing officer or panel in the case alleging attorney misconduct based on his alleged battery and sexual battery of four women last year.

Specifically, the March 19 disciplinary complaint alleges Hill violated Indiana Rules of Professional Conduct 8.4(b) and (d) and Indiana Rule of Admission and Discipline 22 when he allegedly groped four women at an end-of-session legislative party last March. Democratic Rep. Mara Candelaria Reardon, her aide Samantha Lozano, Senate Democratic communications director Gabrielle McLemore and Senate Republican aide Niki DaSilva each alleged Hill committed sexual misconduct against them by touching or grabbing their buttocks, rubbing his hand down their backs and pulling them to close him, all without their consent.

“As the elected Attorney General, (Hill) holds a position of extreme public trust and his office touches on virtually all areas of state government,” the commission wrote in its complaint. “As a government lawyer, the respondent has a heightened duty of ethical conduct that is long established in Indiana ethics law.

“The respondent’s ethical violations and offensive conduct reflect poorly on the legal profession and does incalculable harm to the public perception of the Attorney General’s office and all the state agencies it represents.”

Generally in attorney discipline cases, a hearing officer is appointed pursuant to Admission and Discipline Rule 23, Section 13 “to preside over any hearing and to render a report to the court.” However, in a Tuesday motion, the Disciplinary Commission urged the Supreme Court to appoint a three-person hearing panel to oversee Hill’s disciplinary action.

A panel of “masters” is generally appointed in judicial discipline cases “due to the potential consequences of judicial misconduct to the court system and the public confidence in the integrity of that system,” the commission wrote. Given the fact that Hill is a statewide elected office holder, the commission said any discipline imposed on him “could have consequences that are not dissimilar to those in judicial discipline.”

Any disciplinary hearing before a hearing officer or masters would be open to the public under commission rules. A suspension or disbarment, if ordered by the Supreme Court, would seemingly make Hill ineligible to continue serving as attorney general, at least for the length of the sanction.

But in Hill’s motion arguing against the appointment of a hearing officer or panel, Hill said the repercussions of the allegations against him — and the possible impact the alleged misconduct would have on the public perception of his office — “is a political question on which Indiana voters should be heard and not one that should be decided by another branch of government.”

“This is an extraordinary case in that it represents an agency of Indiana’s judicial branch seeking to professionally discipline a statewide elected official of a separate and coequal branch of government,” Don Lundberg, the Indianapolis attorney and former Disciplinary Commission director representing Hill, wrote in the motion to decline a hearing officer or panel. “This is not unprecedented in Indiana, but it is rare. It is especially rare for an agency of the judicial branch of government to bolster the case for judicial intervention because of a claim that the contested conduct at issue ‘does incalculable harm to the public perception of the Attorney General’s office and all the state agencies it represents.’”

Hill’s motion also disputes the commission’s assertions that he violated professional conduct rules. His alleged misconduct, if true, would not reflect adversely on his fitness to practice law, he said, nor is battery or sexual battery “a crime of dishonesty or breach of trust.” Those allegations go to potential violations of rule 8.4(d).

Further, the administration of justice would not be implicated by the “personal conduct of a lawyer who happens to be a public office holder,” Hill’s motion says in reference to Rule 8.4(d), and Rule 22 — which is the Indiana Oath of Attorneys — is not “an on-going professional duty.”

“Use of the lawyer discipline process to punish a lawyer for allegedly engaging in offensive personality violates due process inasmuch as it applies a standard in a manner that is void for vagueness,” Lundberg wrote for Hill. “In addition to failing to put lawyers on fair notice of conduct that falls within that standard, the offensive personality standard leaves too much power in the hands of a judicial branch regulator to punish lawyers, in this case a lawyer in a separate and co-equal branch of government, for illegitimate reasons, including personal dislike or subjective disapproval.”

Hill’s motion makes much of the fact that special prosecutor Daniel Sigler declined to press criminal charges against him, and that Indiana Inspector General Lori Torres found the allegations against him were not in direct violation of any ethical rules. Even so, both Sigler and Torres credited the accounts of the four accusers and eyewitnesses to the alleged groping.

To support his motion against a hearing officer or panel, Hill cited to Matter of Haith, 49S00-9707-DI-422, in which the Supreme Court declined to appoint an officer. The Haith case was then dismissed.

But the Disciplinary Commission filed a response to Hill on Thursday alleging his motion was prohibited under Admission and Discipline Rule 23, Section 14(a)(3), which provides that, “No motion or dilatory motions shall be entertained.”

“Regardless of its label, the respondent’s motion to not appoint a hearing panel or any hearing officer … is a motion to dismiss or is otherwise dilatory and ‘shall not be entertained,’” the commission wrote. Commission attorneys also accused Lundberg of violating rules regarding attorney-client confidentiality, noting that the portion of Hill’s motion that discusses Haith references case proceedings that would not be “generally known.”

At the commission’s request, the Supreme Court handed down an order Thursday giving the commission 10 days to file a complete response to Hill’s motion to decline a hearing officer or panel. As of Friday, no other documents had been filed in the disciplinary case, In The Matter Of: Curtis T. Hill, Jr., 19S-DI-00156.

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