Disciplinary Commission: AG Hill claiming he is above ethics rules

Olivia Covington for www.theindianalawyer.com

The Indiana Supreme Court Disciplinary Commission has accused Attorney General Curtis Hill of seeking special treatment in the disciplinary proceedings brought against him, arguing in court filings that Hill’s case must go before a hearing panel to protect the public interest.

The commission filed a response Friday to Hill’s previous motion to decline the appointment of a hearing officer or panel. The officer or three-person panel would serve as the “trial judge” in the disciplinary proceeding and could make a recommendation on sanctions to the Supreme Court, which has the sole authority to impose discipline.

In response to the commission’s motion to appoint a three-master hearing panel — which is usually only done for judicial discipline — Hill argued the consequences of allegations that he drunkenly groped four women at a legislative party in March 2018 were best left to voters in a political forum, rather than to a court in a judicial forum. He also said that because a special prosecutor declined to charge him with criminal conduct, a disciplinary proceeding would be unwarranted and “unprecedented.”

The commission, however, rejected each of those assertions in its response Friday, arguing instead that the disciplinary proceedings against Hill are independent of criminal proceedings brought by a prosecutor or ethical proceedings brought against state officials. Inspector General Lori Torres found Hill’s alleged misconduct did not violate state ethics rules, though both she and special prosecutor Daniel Sigler said they believed the accounts of Hill’s four accusers.

Additionally, the commission said the four women’s decision to seek civil redress against Hill and the state has no bearing on whether the disciplinary action can proceed.

“The respondent’s motion (to decline a hearing panel), by any measure, is an extraordinary request for the Court to ignore its long-established rules and procedures and grant an ordering ending the case summarily, despite his statement that the allegations are contested,” the commission wrote. “In short, the respondent has requested a special procedure, or rather, non-procedure, just for him.”

Multiple lawyer ethics attorneys have told Indiana Lawyer they have never seen a disciplinary proceeding where a hearing officer or panel was not appointed. In his motion, Hill pointed to Matter of Haith, 49S00-9707-DI-422, in which the Supreme Court declined to appoint a hearing officer. According to Hill’s motion, Haith was subsequently dismissed, but the Disciplinary Commission has argued that Hill’s reliance on Haith makes his motion an inappropriate motion to dismiss.

If a hearing officer were not appointed, some ethics attorneys have said the disciplinary proceeding could conceivably be heard directly by the Supreme Court justices. However, the justices typically appoint hearing officers to make findings of fact and conclusions of law before the high court makes a final decision on sanctions.

To bolster its argument in favor of appointing a hearing panel, the Disciplinary Commission cited to numerous attorney discipline cases in which lawyers were disciplined for conduct that was not charged, for which they were acquitted or that occurred outside of their official duties. Among the cases cited was Matter of Riddle, 700 N.E.2d 788, 793 (Ind. 1998), in which the court held that, “… (T)his Court may find a violation of the Rules of Professional Conduct even where there has been no criminal charges against or criminal conviction of respondent.”

“The reason that criminal charges are not a requisite for asserting a violation of Rule 8.4(b) is because the nature and purpose of discipline proceedings are fundamentally different from those of the criminal justice system,” the commission wrote, citing Matter of Roberts, 442 N.E.2d 986 (Ind. 1983).

Hill’s motion against a hearing officer or panel relies heavily on special prosecutor Sigler’s decision not to press criminal charges. In announcing his decision, Sigler said he could not prove the “intent” element of battery, an element the commission said in its Friday motion was misapplied.

“As a general intent crime,” the commission wrote, “battery requires that the actor merely has knowledge he is engaged in the conduct and does not require ‘intent’ of harm.”

Even so, the commission’s response notes Sigler warned against reading conclusions into his report that weren’t there. But according to the commission, Hill has inappropriately read the report as exonerating him.

Hill “asserts that the Commission is being disrespectful to the special prosecutor by asserting a Rule 8.4(b) violation when the prosecutor declined to file a criminal charge,” commission attorneys wrote in a footnote. “It is the respondent who has shown disregard for the special prosecutor’s report by ignoring the special prosecutor’s warning.”

In the March 19 disciplinary complaint, Hill is charged with violations of Rules of Professional Conduct 8.4(b) and (d), which relate to his fitness as a lawyer and prejudice to the administration of justice. The AG argued his alleged misconduct, if true, would neither reflect adversely on his fitness nor prejudice the administration of justice. Further, he argues the “offensive personality” charge brought against him under Admission and Discipline Rule 22 is “void for vagueness.”

The Disciplinary Commission, however, said that as Indiana’s chief legal officer, the attorney general has duties that are “extremely far reaching and important to the welfare of the State of Indiana and the enforcement of the law.” As support for its argument, the commission cited to Matter of Seat, 588 N.E.2d 1262, 1264 (Ind. 1992), in which a deputy prosecutor was disciplined for drunken driving.

“It is not logical to determine that a deputy prosecutor’s criminal conduct is prejudicial to the administration of justice for a single offense of Operating While Intoxicated, and then conclude that the conduct of the Attorney General, who has committed multiple acts of battery and/or an act of sexual battery is not,” the commission wrote. “The conduct of the Attorney General will have an exponentially greater impact on diminishing public confidence and will result in a greater prejudice to the administration of justice.”

In addition to resubmitting its request for the Supreme Court to appoint a hearing officer, the Disciplinary Commission also urged the justices to issue specific rulings or opinions on each of the arguments Hill and his attorney, former commission director Donald Lundberg, raise in their motion against a hearing officer or panel.

“What his motion boils down to is that the respondent seeks special and favorable treatment by the Court that no other lawyer would ever obtain,” the commission concluded. “He seeks this Court, in essence, to declare that he is a lawyer whose conduct is above the Rules of Professional Conduct, simply because he is the Attorney General. The Commission can think of nothing that would deepen the mistrust of the judicial system, diminish the esteem of the Supreme Court and prejudice the administration of justice more than if the Court were to grant the respondent’s motion.”

It’s not clear what effect a sanction against Hill might have on his ability to serve as attorney general. If he were suspended or disbarred, he would seemingly be precluded from performing the legal duties of his position, at least temporarily.

Hill has vehemently denied the allegations of sexual misconduct and has expressed confidence that the disciplinary matter, if it proceeds, will be resolved in his favor. The case is In the Matter of: Curtis T. Hill, Jr., 19S-DI-00156.

For more on the unique questions raised by the disciplinary complaint against Hill, read the April 3 edition of Indiana Lawyer.