AG Hill: Argument for ethics hearing panel ‘fatally flawed’

Olivia Covington for www.theindianalawyer.com

The briefing battle between Indiana Attorney General Curtis Hill and the Supreme Court Disciplinary Commission has continued this week, with Hill arguing in new court filings that the commission’s attempts to convince the Supreme Court to proceed with the case consist of bootstrapping, red herrings and fatal flaws.

Currently at issue in In the Matter of: Curtis T. Hill, Jr., 19S-DI-156, is whether the Supreme Court should appoint a hearing officer or three-person panel to preside over disciplinary proceedings arising from claims of sexual misconduct against Hill.

In response to allegations that Hill groped four women at a legislative party in March 2018, the Disciplinary Commission filed a formal disciplinary complaint against the AG last month, alleging his conduct constituted Class B misdemeanor battery and Level 6 felony sexual battery. As a result, the commission argues, Hill violated Indiana Rules of Professional Conduct 8.4(b) and (d) and Admission and Discipline Rule 22.

Generally in attorney discipline cases, the Supreme Court vests hearing officers with the power to oversee pre-trial discovery, preside over public hearings and make findings of fact to submit to the justices, who make the final decision on sanctions. Here, the commission moved to appoint a three-master hearing panel, a step usually only taken in judicial discipline cases.

Hill opposed that motion, and in response the commission claimed in a Friday filing that there is ample caselaw that supports attorney discipline even if the attorney has not been criminally charged or is acquitted. In Hill’s case, a special prosecutor declined to file criminal charges, believing he could not prove the intent element of battery, while the inspector general found no state ethical violations. But both Daniel Sigler and Lori Torres, the special prosecutor and inspector general, respectively, said they believed Hill’s accusers.

In a response filed late Tuesday afternoon, Hill and his attorney Donald Lundberg, the former director of the Disciplinary Commission, hit back at the commission’s argument, claiming the judicial branch does not have the power to discipline Hill — an elected member of the executive branch — for uncharged criminal conduct. Such a proceeding, they argued, would be an affront to the disciplinary process and would interfere with the doctrine of separation of powers.

“In this case, the Court’s exercise of discretion should be informed by the fundamental policy considerations that undergird the lawyer discipline system,” Hill and Lundberg wrote. “One of those considerations is that the lawyer discipline system is not an appropriate tool for addressing the perceived ills of society-at-large by trumping the decisions of other officials who are authorized by law to make decisions that fall squarely within their realm and that do not relate directly to the practice of law.”

Turning first to the allegations under Rule 8.4(b) — which concerns attorney fitness — Hill argues there is no nexus between his alleged misconduct and his fitness to practice law. He cited extensively to Matter of Mears, 723 N.E.2d 873 (Ind. 2000), which the commission also cited to support its position.

In Mears, a former judge was acquitted on charges of ghost employment, but the Disciplinary Commission still brought charges. In rendering its decision, the Mears court held that, “Acquittal on criminal charges does not prohibit the filing of professional misconduct charges.”

“However, as the Commission fails to mention, the Commission respected the criminal system’s determination of reasonable doubt and did not charge Mears with violating Rule 8.4(b),” Hill wrote. “Viewed in that setting, the Court did not mean to say that acquittal on criminal charges does not prohibit the Commission from charging a lawyer with violating Rule 8.4(b) for engaging in the criminal conduct of which the lawyer was acquitted.”

Claiming the commission “cherry-picked” language from disciplinary decisions it believed would support its position, Hill rejected the argument that he could be disciplined under 8.4(b) because his alleged conduct reflected adversely on the practice of law and on his office.

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“This Court has never held that negative public perception is alone enough to provide the nexus with fitness to practice law,” he wrote. “If that were the case, any time the public reacted negatively to any crime committed by a lawyer — even a crime this Court has clearly held does not reflect adversely on fitness to practice law — the lawyer would be subject to professional discipline.”

Hill and Lundberg also took aim at the commission’s contention that Sigler misapplied the “intent” element of battery when declining to press charges. Commission attorneys argued that “battery requires that the actor merely has knowledge that he is engaged in the conduct and does not require ‘intent’ of harm.”

“This utterly disregards the express statutory requirement that an essential element of battery is that a touching be done in a rude, insolent or angry manner,” Hill responded. “The Commission’s focus on required proof of intending harm is a red herring.”

What’s more, Hill said, “(t)he Commission’s analysis of Respondent’s alleged criminal conduct is so fatally flawed that the Court should disavow its position and defer to the experienced special prosecutor’s correct conclusion that there is no viable basis in fact or law to claim the Respondent engaged in criminal conduct.”

Hill and Lundberg also briefly addressed the charge of a violation of Rule 8.4(d), which concerns prejudice to the administration of justice. Considering Hill argues he did not engage in criminal conduct “even on the facts as alleged,” his motion maintains that he cannot have prejudiced the administration of justice.

“The Commission’s argument that Rule 8.4(d) applies on these facts is has (sic) no merit,” he wrote. “… (T)he Commission’s argument is blatant bootstrapping.”

Finally, turning to the charge of “offensive personality” under Admission and Discipline Rule 22, the Oath of Attorneys, Hill said the Supreme Court has never fully addressed whether lawyers can be disciplined for violating the oath, and such discipline should not be permissible.

“Lawyers don’t wake up in the morning and take the oath every day before they go to work,” Hill and Lundberg wrote, calling the oath a “statement of aspiration.” “But they do wake up every day subject to the standards set out in the Rules of Professional Conduct. If a lawyer violates one of those appropriate professional discipline is a possibility.”

“In filing his motion, the Respondent does not suggest and does not mean to suggest that the Court could consider the decision to appoint a hearing officer as being anything other than routine in run-of-mill lawyer discipline cases,” Hill concluded. “What he suggests is that this is an exceptional case where an arm of the judicial branch of government proposes to use the power of that branch to punish an elected official in a separate and independent branch of government merely because it disapproves of alleged conduct the Respondent engaged in outside of his duties as an elected official and outside his role as an Indiana lawyer.”

Thus, Hill reiterated his request to decline the appointment of a hearing officer or panel in his case.

It’s unclear how the case might proceed if a hearing officer or panel weren’t appointed. Ethics attorneys say they have never seen that situation occur, but some suggest the case could go directly before the justices for adjudication.