AG Hill, disciplinary commission differ on whether suspension means Hill vacates office

A decision from the Indiana Supreme Court on whether Attorney General Curtis Hill will “vacate” his office during his impending suspension likely will not be handed down until next week, creating uncertainty over whether the Office of the Attorney General will have a recognized leader come Monday.

Hill on Monday will begin a 30-day suspension for violations of Professional Conduct Rules 8.4(b) and (d) related to allegations that he drunkenly groped four women. He will be automatically reinstated June 18.

Hill announced that his chief deputy, Aaron Negangard, will take over the legal operations of the Office of the Attorney General during that time. But Indiana Gov. Eric Holcomb moved to intervene in Hill’s discipline case, asking the Supreme Court for clarity on whether Hill’s suspension equates to a vacancy in the office that Holcomb would fill.

On an order of the high court, both Hill and the Indiana Supreme Court Disciplinary Commission responded to the governor’s request Friday, taking different stances.

The commission did not object to the motion to intervene but declined to opine on the “statutory selection process for vacancies in the Attorney General’s office.” But the commission also seized on Hill’s decision to give Negangard authority over OAG’s legal operations, implying that Hill’s suspension will disqualify him from more than just his office’s legal functions.

“By rule, Respondent’s suspension prohibits him from maintaining a presence in or occupying an office in which the practice of law is conducted while he is suspended,” the commission wrote, citing to Indiana Admission and Discipline Rule 23(26)(b)(1). “Thus, Respondent must completely disengage from any control or authority pertaining to the Office of Attorney General.

“… Maintaining any presence including retaining any control or authority over an office in which the practice of law is conducted violaties Admis. Disc.R. 23(26)(b)(1),” the commission continued. “… In addition, the Respondent may not ‘occupy an office’ where the practice of law is conducted, which may be read as pertaining not only to a physical location but also to the ‘Office’ of Attorney General.”

Hill, however, argued his suspension will be only a “short interruption” of his “ability to carry out some (but not all) statutory responsibilities.”

“In this case, the Respondent’s suspension affects his ability to personally practice law, but the attorney general’s duties include many more functions than acting as the state’s legal representative,” attorney Don Lundberg, former head of the Disciplinary Commission, wrote on Hill’s behalf. He gave the statutory examples of administering the Office of the Attorney General, administering collection and distribution of unclaimed property and investigating human trafficking.

The key statute at issue in the dispute over Hill’s eligibility to remain in office is Indiana Code § 4-6-1-3, which holds that “(t)he attorney general shall be a citizen of and duly licensed to practice law in Indiana.”

In his opposition to the governor’s motion, Hill seized on the difference between being “licensed” to practice law and being “authorized” to do so.

“It is however, noteworthy that IND. CODE 4-6-1-3 establishes due licensure as a qualification for the attorney general; but it does not require that the attorney general be duly authorized to practice law. This should not be shocking,” Lundberg wrote. “Given the nature of his statutory responsibilities, training in the law and licensure to practice law is a worthy qualification. But authority to actually practice law is not necessary because, unless the attorney general chooses to personally give legal advice to the State or its agencies or actively represent them in court, he has duly licensed and authorized deputy attorneys general to actually render legal representation to the State and its agencies.

“… Because the Respondent will remain duly licensed to practice law during the thirty days of his suspension, he will not have lost a qualification for holding his public office, so the Governor’s Motion should be denied since he is not entitled to the relief he seeks in the Motion.”

Hill also argued that a “vacancy” occurs in office only when the officeholder dies, resigns or in “other circumstances that cause the officeholder to be unable to complete the term of office.” Here, he noted, he will be able to return to office 30 days after May 18.

Additionally, Hill said Holcomb’s motion is not proper in an attorney discipline case, where the rules of pleading and practice do not apply.

A spokeswoman for the Supreme Court said Indiana’s five justices will “carefully consider” the motion and responses and likely hand down their decision next week.

Indiana Lawyer has reached out to Holcomb’s office for comment on whether the governor will recognize Negangard as the office’s leader if the Supreme Court has not ruled by Monday