                                            FILED
                                       May 11 2020, 10:58 am

                                            CLERK
                                        Indiana Supreme Court
                                           Court of Appeals
                                             and Tax Court

              IN THE

Indiana Supreme Court
   Supreme Court Case No. 19S-DI-156

         In the Matter of
         Curtis T. Hill, Jr.,
               Respondent.


          Decided: May 11, 2020

        Attorney Discipline Action

      Hearing Officer Myra C. Selby



          Per Curiam Opinion
           All Justices concur.
Per curiam.

   This matter is before the Court on the report of the hearing officer we
appointed to hear evidence on the Indiana Supreme Court Disciplinary
Commission’s disciplinary complaint filed against Respondent, Curtis
Hill. We find, as did the hearing officer, that Respondent committed acts
of misdemeanor battery, conduct that under the circumstances of this case
violated Indiana Professional Conduct Rules 8.4(b) and 8.4(d).

  Respondent’s 1988 admission to this State’s bar subjects him to this
Court’s disciplinary jurisdiction. See IND. CONST. art. 7, § 4. For
Respondent’s professional misconduct, we conclude that Respondent
should be suspended for 30 days with automatic reinstatement.


Procedural Background and Facts
  Respondent is, and at all relevant times was, the Attorney General of
Indiana.

   At the conclusion of the 2018 Indiana legislative session, several
legislators, lobbyists, and legislative staff attended an event at a local bar.
Respondent also attended this event at the invitation of a lobbyist with
whom Respondent had been dining and drinking that evening. While at
the event, Respondent engaged in acts against four women—a state
representative and three legislative assistants—that involved various
forms of nonconsensual and inappropriate touching. More specifically, as
summarized by the hearing officer, Respondent:

    (a) “Touch[ed] [M.R.’s]1 bare back, rubbing his hand down her back
        down to or just above her buttocks without her consent. He did not
        accidentally or inadvertently rub [M.R.’s] back down to her mid to
       low back.”




1In keeping with our customary practice in disciplinary opinions, we refer to the women by
their initials.



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020                       Page 2 of 19
   (b) “Rub[bed] [G.B.’s] back without her consent. He did not
       accidentally or inadvertently rub [G.B.’s] back.”

   (c) “Put[ ] his arm around [S.L.’s] waist and pull[ed] her toward him
       without her consent. He did not inadvertently touch [S.L.] and pull
       her to him.”

   (d) “Touch[ed] [N.D.’s] back, moving his hand down her back and
       moving [N.D.’s] hand toward her buttocks and touching her
       buttocks without her consent. He did not accidentally or
       inadvertently touch [N.D.’s] back and move his hand down her
       back toward her buttocks.”

(HO’s Report at 25).

  Concerns regarding the events at the bar that night eventually were
brought to the attention of legislative leaders, who privately
commissioned a report (“the Taft Report”) from a law firm to examine
potential employment law issues in connection with those events. After
the report was prepared the legislative leaders met separately with
Respondent and with the four women, and Respondent at this juncture
was generally apologetic.

   Shortly thereafter, the Taft Report was inappropriately leaked to the
media by a legislative staffer, and the controversy surrounding the events
at the bar became a matter of significant public discussion. In the ensuing
days and months, the four women came forward publicly with their
accounts of what had happened, and Respondent assembled a group of
employees and outside consultants (collectively, “Respondent’s team”) to
assist with his own public response in the wake of the unauthorized
disclosure of the Taft Report.

   In March 2019, the Commission filed a disciplinary complaint against
Respondent alleging that his conduct at the bar violated Indiana
Professional Conduct Rules 8.4(b) and 8.4(d) and Indiana Admission and
Discipline Rule 22 (“Oath of Attorneys”). The disciplinary complaint also
alleged several aggravating factors, including among other things the
conduct of Respondent and his team following disclosure of the Taft
Report.


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020        Page 3 of 19
    A four-day evidentiary hearing was held in October 2019, followed by
the parties’ submission of post-hearing briefing. The hearing officer issued
a detailed 36-page report on February 14, 2020. As discussed further
below, the hearing officer found that Respondent violated Rules 8.4(b) and
8.4(d), found in favor of Respondent on the Oath of Attorneys charge, and
recommended that Respondent be suspended for at least 60 days without
automatic reinstatement. We extend our deep gratitude to the hearing
officer for her service and excellent work in this difficult case.


Discussion and Discipline
  Respondent has petitioned for review of the findings and conclusions
that he violated Rules 8.4(b) (by committing battery) and 8.4(d). The
Commission has not sought review of the hearing officer’s determinations
that Respondent did not commit sexual battery and did not violate the
Oath of Attorneys.2 Both parties also have briefed the question of
appropriate sanction should misconduct be found.

  At the outset, we are compelled to note our strong disapproval and
extreme disappointment with respect to the tenor of the parties’ briefs in
this case. The Commission repeatedly refers to Respondent in hyperbolic
terms of sexual predation, and the Commission—entirely without
support—accuses Respondent of having committed perjury at the final
hearing simply because the hearing officer, in endeavoring to reconcile all
the testimony (including Respondent’s), found that Respondent’s conduct
amounted to battery. Respondent for his part alternately describes the
Commission using terms such as “imperialist,” “coddling,” “dismissive,”
and “arrogant,” and Respondent devotes far too much of his briefing to




2The Commission did not file its own petition for review. In a single footnote in its response
to Respondent’s petition, the Commission “submits” that “the crime of sexual battery was
proved . . . [and] a violation of [the Oath of Attorneys] was also proved.” (Comm’n Resp. Br.
at 20 n.10). Although a party “may raise in its response brief any issues for review that were
not raised in the Petition for Review,” Admis. Disc. R. 23(15)(a)(3), we decline to revisit the
hearing officer’s determinations on these two points in light of the Commission’s failure to
develop any argument on either of them.



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020                          Page 4 of 19
entirely unfounded attacks on the Commission’s motives and integrity.
There are many legitimate legal arguments to be made in this case, which
makes the parties’ inappropriate ad hominem attacks on one another a
particularly frustrating distraction. We expect counsel to behave better in
future cases.

   The Commission carries the burden of proof to demonstrate attorney
misconduct by clear and convincing evidence. See Ind. Admission and
Discipline Rule 23(14)(g)(1). While our review process in disciplinary
cases involves a de novo examination of all matters presented to the Court,
the hearing officer’s findings receive emphasis due to the unique
opportunity for direct observation of witnesses. See Matter of Henderson, 78
N.E.3d 1092, 1093 (Ind. 2017). These time-honored standards guide our
discussion below.

   1. Criminality. Because it bears upon our analyses of both Rules
8.4(b) and 8.4(d) in this particular case, we begin by examining whether
the Commission proved by clear and convincing evidence that
Respondent committed battery. As relevant here, the criminal act of
battery is committed when a person “knowingly or intentionally . . .
touches another person in a rude, insolent, or angry manner.” I.C. § 35-42-
2-1(c)(1).

   The “touch” element is easily satisfied in this case. “Any touching,
however slight, may constitute battery,” Impson v. State, 721 N.E.2d 1275,
1285 (Ind. 2000), and Respondent largely acknowledges having made
physical contact with the four women. The points of dispute in this case
instead have revolved around the manner of that contact and
Respondent’s intent.

   Although the battery statute does not separately define “rude, insolent,
or angry manner,” these disjunctive terms of art have plain and ordinary
meanings readily susceptible of application by a factfinder. See
https://www.merriam-webster.com/dictionary/rude
[https://perma.cc/SE9X-FNRJ] (defining “rude” in part as “lacking
refinement or delicacy,” “inelegant, uncouth,” or “offensive in manner or
action: discourteous”); https://www.merriam-
webster.com/dictionary/insolent [https://perma.cc/6H9J-LAXW] (defining


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020         Page 5 of 19
“insolent” as “insultingly contemptuous in speech or conduct:
overbearing” or “exhibiting boldness or effrontery: impudent”).

   The hearing officer’s report does not include a separate finding that
Respondent’s manner of touching the four women was “rude,” “insolent,”
or “angry.” However, such a finding is clearly implied in the hearing
officer’s correct articulation of the elements of battery, her ultimate
findings and conclusions that Respondent committed battery, and her
lengthy and detailed discussion of the testimony regarding the particular
manner in which Respondent touched each of the four women. And
having reviewed the record, we readily conclude there is ample evidence
showing that the manner of Respondent’s touches was both “rude” and
“insolent.” The four women each were clear and unequivocal in their
testimony regarding Respondent’s specific acts, and to varying extents the
acts described by the four women (and the women’s reactions in the
aftermath of those acts) were witnessed by each other and by other people
at the bar.

  Turning to the question of mens rea, we note that much of Respondent’s
defense in this case is predicated on the notion that in a social or quasi-
social gathering amongst friends or colleagues in a celebratory and
somewhat crowded setting, a certain amount of physical contact is de
rigeur and to be expected. (See Tr. Vol. 4 at 59 (“I had contact—I had
physical contact with a host of people in connection with meeting them,
either shaking hands, putting a hand on their shoulder, putting a hand
around a shoulder, around a waist, all incidental to contact
communication.”)). To be sure, purposeful physical contact can take a
variety of forms, and the appropriateness of each form often will depend
heavily on both nuance and context. It is precisely because of this
variability that we vest responsibility in our factfinders to evaluate “the
reasonable inferences based upon an examination of the surrounding
circumstances to determine whether—from the person’s conduct and the
natural consequences therefrom—there is a showing or inference of the
requisite criminal intent.” Diallo v. State, 928 N.E.2d 250, 253 (Ind. Ct. App.
2010) (internal quotation omitted). At the end of the day, whether
Respondent possessed the requisite mens rea was a question of fact to be
determined by the hearing officer; and the long, lingering, and


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020           Page 6 of 19
meandering touches described by the four women and others, the various
reactions of those who experienced or observed those touches, and the
numerous other accounts of Respondent’s conduct at the bar, all offer
ample support for the hearing officer’s ultimate finding on this point.

  In sum, we find and conclude, as did the hearing officer, that the
Commission proved by clear and convincing evidence that Respondent
committed the criminal act of battery.3

    2. Rule 8.4(b). This Rule provides that it is misconduct to “commit a
criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.” Our
determination that Respondent committed a criminal act, standing alone,
is not enough to establish a violation of this Rule. We also must examine
the nexus (if any) between that criminality and one or more of the three




3 Respondent draws our attention to the fact that prior to the initiation of these disciplinary
proceedings, a special prosecutor issued a report in which he declined to bring criminal
charges against Respondent. The report itself was excluded from evidence in this case (a
ruling Respondent challenges), but the special prosecutor’s ultimate determination
nonetheless was established by other evidence. For several reasons though, the special
prosecutor’s declination of prosecution is of no moment to our analysis. “It is the exclusive
province of this Court to regulate professional legal activity.” Matter of Mittower, 693 N.E.2d
555, 558 (Ind. 1998). “A disciplinary action is not a criminal proceeding; the discipline of a
member of the Bar of this State is independently determined from any other proceeding, even
if the alleged professional impropriety involves criminal conduct.” Matter of Sheaffer, 655
N.E.2d 1214, 1217 (Ind. 1995); accord Matter of Smith, 60 N.E.3d 1034, 1036 (Ind. 2016). As
Respondent himself emphasizes throughout his briefing, criminal, civil, disciplinary,
legislative, and electoral accountability mechanisms each have their own distinct aims and
purposes. Moreover, a prosecutor may decline to pursue a prosecution for any number of
reasons unrelated to whether the subject of the investigation committed a criminal act; and
indeed, the special prosecutor’s report proffered by Respondent cited some of those reasons.
(See Pet. for Rev., Ex. 1 at 6 (citing prosecutorial burden of proof of intent beyond a reasonable
doubt and the lack of a public benefit to criminal prosecution under these circumstances)).
Further, Respondent concedes, in reference to a prior disciplinary case, that an attorney’s
“acquittal would not have barred a discipline charge based on Rule 8.4(b) because acquittal
only signifies the existence of reasonable doubt rather than the absence of clear-and-
convincing evidence.” (Br. in Supp. of Pet. for Rev. at 31 n.15 (citing Matter of Mears, 723
N.E.2d 873 (Ind. 2000))). If an acquittal based on an adjudged lack of proof beyond a
reasonable doubt does not preclude a Rule 8.4(b) charge, it follows that a declination of
prosecution based on a perceived lack of proof beyond a reasonable doubt fares no
differently.



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020                            Page 7 of 19
characteristics enumerated in the Rule—honesty, trustworthiness, or
“fitness as a lawyer in other respects.” And as the parties have done in
their briefing, we focus our attention here on the fitness element.

   Our leading case addressing this nexus requirement is Matter of Oliver,
493 N.E.2d 1237 (Ind. 1986). That case involved an attorney who crashed
his car into a tree after driving while intoxicated (“OWI”) on his way
home from a bar, was charged with misdemeanor OWI, pled guilty, and
had acceptance of the plea withheld pending successful completion of
community service and other conditions of an informal probation. Oliver
was charged with violating three provisions of our former Code of
Professional Responsibility. One was the predecessor to what is now Rule
8.4(d), which we discuss below. The other two provisions addressed,
respectively, illegal conduct involving “moral turpitude” and conduct
adversely reflecting on fitness to practice. These two Code provisions later
were consolidated into Rule 8.4(b), with the “moral turpitude” component
being replaced with the three specific characteristics now enumerated in
Rule 8.4(b).

  In finding no violation of the Code provision addressing criminal
conduct involving moral turpitude, we emphasized the “objective of the
rule” over the “problem of definition” and noted that Oliver was not a
multiple offender or someone with a chronic alcohol problem, his criminal
act was isolated and did not result in any personal injury or property
damage except to himself, and he had readily admitted his guilt and
successfully discharged the conditions of his informal probation. Oliver,
493 N.E.2d at 1241. We likewise found no violation of the Code provision
addressing conduct adversely reflecting on fitness to practice after finding
that the evidence adduced in that case “demonstrated that Oliver’s sole
act did not affect his practice or lead to any reasonable question about his
suitability as a practitioner[.]” Id. at 1242-43.

   The principles articulated in Oliver survived the adoption of the Rules
of Professional Conduct, see Matter of Eddingfield, 572 N.E.2d 1293, 1295
(Ind. 1991), and are encapsulated in our Commentary to Rule 8.4:

        Although a lawyer is personally answerable to the entire criminal
        law, a lawyer should be professionally answerable only for offenses


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020         Page 8 of 19
        that indicate lack of those characteristics relevant to law practice.
        Offenses involving violence, dishonesty, breach of trust, or serious
        interference with the administration of justice are in that category.
        A pattern of repeated offenses, even ones of minor significance
        when considered separately, can indicate indifference to legal
        obligation.

   These principles likewise are reflected throughout our post-Oliver
disciplinary jurisprudence. Crimes involving theft, fraud, or the like—
even if they involve an isolated act committed outside of one’s legal
practice—have been held to be attorney misconduct because they
inherently bear on an attorney’s honesty or trustworthiness. See, e.g.,
Matter of Page, 8 N.E.3d 199 (Ind. 2014) (attorney aided and abetted fraud
in connection with a loan application). Crimes of violence—even those
involving a single act committed outside of one’s legal practice—have
been held to be attorney misconduct on the premise that such an act bears
on “fitness as a lawyer in other respects.” See, e.g., Matter of Smith, 97
N.E.3d 621 (Ind. 2018) (attorney committed felony intimidation against his
estranged wife); Matter of Coleman, 67 N.E.3d 629 (Ind. 2017) (attorney
committed domestic battery of wife in presence of four children). And of
course, crimes committed by an attorney during the performance of his or
her legal work have been treated as having an immediate and self-evident
nexus to the attorney’s fitness to practice law. See, e.g., Matter of Robertson,
78 N.E.3d 1090 (Ind. 2016) (attorney committed OWI while driving to the
courthouse for a scheduled hearing and battery against a court
receptionist); Matter of May, 992 N.E.2d 684 (Ind. 2013) (attorney battered
his client in the courthouse after a hearing).

  In certain circumstances, an attorney’s particular field of practice also
has informed our nexus analysis. For example, in Matter of Walker, 597
N.E.2d 1271 (Ind. 1992), a part-time prosecutor who also practiced in
family law committed domestic battery against his partner. In finding a
violation of Rule 8.4(b) and rejecting Walker’s argument that the requisite
nexus was lacking because the battery arose as part of a “private, adult
relationship,” we observed that Walker’s act of domestic battery “calls
into question his ability to zealously prosecute or to effectively work with
the victims of such crimes” and similarly compromised his effectiveness


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020             Page 9 of 19
with his private clients or with adversaries in situations involving issues
of domestic violence. Id. at 1272.

   Other jurisdictions have wrestled with similar questions. Some
decisions have highlighted the deleterious effect any violation of the law
necessarily has on the perception of individuals whose tradecraft is
premised upon respect for, and adherence to, the rule of law. See, e.g.,
Matter of Horwitz, 180 Ariz. 20, 24, 881 P.2d 352, 356 (1994) (“[T]he public
has a right to expect that lawyers will, in general, live as law-abiding
citizens”). Other decisions have focused on how an attorney’s criminality
bears on his or her ability to perform discrete legal tasks, drawing
parallels between “fitness” and “competency.” See, e.g., Matter of
Disciplinary Proceeding Against Curran, 115 Wash.2d 747, 768, 801 P.2d 962,
972 (1990) (“The rule is not concerned with maintaining public confidence
in the bar by disciplining lawyers harming the public image of the bar.
Rather, it is concerned with protecting the public from incompetent
practitioners”). And still others have focused on an attorney’s professional
duties writ large. See, e.g., Matter of Peters, 428 N.W.2d 375, 380 (Minn.
1988) (“A lawyer’s professional capacity, moreover, extends well beyond
the attorney-client relationship, and it seems to us abundantly clear that a
law school dean or law professor acts in the professional capacity of a
lawyer in dealing with the law school’s students and staff”).

   The pragmatic line drawn by Oliver and its progeny reflects measured
consideration of all of these concerns and recognizes that the purposes of
attorney discipline include both the need to protect the public and the
need to preserve public confidence in the legal system. It also is consistent
with our bar admission standards, which require separate demonstrations
of both competency and fitness. See Ind. Admis. Disc. R. 12. The Oliver
doctrine has served Indiana well for over three decades, and neither the
Commission nor Respondent asks us in these proceedings to revisit it.

   Accordingly, we turn to the question presented here: Do Respondent’s
criminal acts of battery against the four women during the event at the bar
have the requisite nexus to his fitness as a lawyer to be actionable under
Rule 8.4(b)?




Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020         Page 10 of 19
   Echoing our earlier discussion of criminality, we note that although the
hearing officer’s report does not include an explicit finding of a nexus
within her discussion of Rule 8.4(b), such a finding is clearly implied in
the hearing officer’s correct articulation of the elements of Rule 8.4(b), her
ultimate findings and conclusions that Respondent violated this Rule, and
her detailed findings and conclusions elsewhere in her report addressing
the relationship between Respondent’s professional role and his
attendance and conduct at the bar.

 Much like the part-time prosecutor who committed domestic battery in
Walker, Respondent argues that the event at the bar was a private function
disconnected from his practice of law or the performance of any act
formally within the scope of his office. Indeed, several attendees testified
that the party was an unofficial and informal event to celebrate the end of
the legislative session. However, whether something is “unofficial” or
“informal” does not answer the question of whether it involved the
performance of the attorney’s professional duties.

   The hearing officer found generally that “the important business of
developing and nurturing goodwill by and between legislators, legislative
staff and lobbyists occurs at the party,” and found more specifically that
“Respondent went to the party intending to conduct some business with
key legislators about a bill that concerned the Office of Attorney General.”
(HO’s Report at 22-23). These findings are borne out by Respondent’s own
testimony during the final hearing:

        That piqued my interest after [the lobbyist] invited me to the party
        because it was my understanding that perhaps Senator Taylor
        would be there and I thought it would be great to go in and thank
        him for being the champion for trying to oppose that particular bill.

        . . . [F]rom my standpoint it was an opportunity to go in and not
        only see Senator Taylor and thank him for his efforts but also to
        continue to do what I try to do everywhere and that’s build
        relationships. I understood that there were going to be legislators
        there. In my tenure there are several legislators that I’ve met, there
        are several more that I’ve not met and it’s always good to have
        relationships and so I thought it was a great opportunity to go say


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020           Page 11 of 19
        “hello” to old friends, meet new friends, and continue to do what I
        do in terms of connect.

(Tr. Vol. 4 at 21-22, 25). And Respondent similarly described in work-
related terms his motivations and conduct while at the party:

        I had some conversations, I recall having a conversation with Jeff
        Phillips, who’s a lobbyist, talking about the function of the office. In
        particular I had a conversation with Senator Taylor, I did track him
        down and we sat down at the bar and spoke for several minutes
        about what had happened that evening at the General Assembly,
        and of course I did thank him for that. I sat down and talked to
        Senator Randolph, Lonnie Randolph, and a few more I spoke to,
        Senator Mishler. Senator Mishler, when he saw me, he introduced
        me to some of the folks he was with, but he made a point of letting
        me know that he was prepared to work with us moving forward,
        despite the fact that his bill was passed and the outcome, he
        wanted to assure me that we were going to continue to work
        together and that there would be access for my office to funds to, I
        don’t want to say replace, but to basically make up for any needs
        that we required.

        . . . [I also did] a lot of what I would call quick-hits, “How are you?
        What’s your name? What do you do?” and then move on, much
        like when I work a political event and my purpose is to meet as
        many people as possible.

(Id. at 30-31).

  Respondent’s own testimony brings his criminal conduct directly
within the ambit of the performance of his professional duties.
Respondent went to the party with the purpose of discussing a bill
affecting his office with key legislators and nurturing goodwill, he spent
time at the party doing precisely these things, and while there he
committed battery against a legislator and three legislative staffers. The
nexus in this case is little different than the nexus in Robertson (OWI on the
way to the courthouse for a hearing and battery on a court receptionist) or




Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020           Page 12 of 19
in May (battery in the courthouse following a hearing), and it is more than
sufficient to establish a violation of Rule 8.4(b).

   3. Rule 8.4(d). This Rule proscribes engaging “in conduct that is
prejudicial to the administration of justice.” Once again, our discussion is
guided by Oliver and its progeny.

   Although we found the requisite nexus between fitness and criminality
to be lacking in Oliver based on the evidence adduced in that case, we
nonetheless concluded that Oliver’s criminal act of OWI violated the
proscription against conduct prejudicial to the administration of justice
because Oliver was serving in a prosecutorial role at the time he
committed his criminal act:

        The duty of judges and prosecutors to conform their behavior to
        the law does not arise solely out of their status as attorneys. As
        officers charged with administration of the law, their own behavior
        has the capacity to bolster or damage public esteem for the system
        different than that of attorneys otherwise in practice.

Id. at 1242. In the years since Oliver, we have consistently held that
criminal conduct committed by prosecutors or their deputies is conduct
inherently prejudicial to the administration of justice due to their status as
“officers charged with administration of the law.” Further, we have
applied this same principle to a deputy attorney general. Matter of Junk,
815 N.E.2d 505 (Ind. 2004).

   Noting that Junk was an agreed disposition, Respondent briefly argues
in a footnote that an Attorney General should be treated differently than a
prosecutor under the Oliver doctrine because the Attorney General in most
instances does not directly charge crimes. (Br. in Supp. of Pet. for Rev. at
43 n.20). But Respondent does not explain how exercising the broad
statutory authority of the office to assist prosecutors and crime victims,
and defending convictions on appeal on behalf of the State, are
meaningfully different in terms of the administration of justice than
charging and prosecuting those crimes on behalf of the State; or how, in
Oliver’s parlance, the Attorney General is not also an “officer[ ] charged
with administration of the law.” In fact, the Attorney General’s role in the



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020          Page 13 of 19
administration of justice—which extends statewide and encompasses a
wide range of criminal, civil, administrative and regulatory matters—
greatly exceeds that of a county prosecutor. See generally I.C. § 4-6-1-6
(setting forth rights, powers, and duties of Attorney General). Put simply,
the Attorney General is the “chief legal officer of the State of Indiana.” (Tr.
Vol. 3 at 102).

  In short, the Attorney General is an “officer charged with
administration of the law” at least to the same extent as a prosecutor, if
not substantially more so. Accordingly, Respondent’s criminal conduct
was prejudicial to the administration of justice, in violation of Rule 8.4(d).

    4. Sanction. Isolated misdemeanor acts of OWI or public intoxication
committed by those in prosecutorial roles frequently have been sanctioned
by public reprimand. See, e.g., Matter of Janeway, 981 N.E.2d 548, 549 (Ind.
2013) (OWI by deputy prosecutor); Junk, 815 N.E.2d at 506 (OWI by
deputy attorney general); Matter of McFadden, 729 N.E.2d 137, 138 (Ind.
2000) (public intoxication by deputy prosecutor). Acts of misdemeanor
battery committed by attorneys have garnered either a public reprimand
or short suspension with automatic reinstatement. See, e.g., May, 992
N.E.2d at 685 (60-day suspension with automatic reinstatement for battery
committed by attorney against client); Matter of Scott, 989 N.E.2d 1249
(Ind. 2013) (public reprimand for domestic battery by attorney); Walker,
597 N.E.2d at 1272 (60-day suspension with automatic reinstatement for
domestic battery committed by part-time prosecutor).4 We think this line
of cases serves as a useful starting point for the question of appropriate
sanction here.

  The hearing officer similarly recommended a 60-day suspension here.
However, she recommended that suspension be served without automatic




4 Disciplinary actions against judges for similar acts committed in violation of our Code of
Judicial Conduct have reached similar results. See, e.g., Matter of Adams, et al., 134 N.E.3d 50
(Ind. 2019) (60-day suspension for judge who committed misdemeanor battery and 30-day
suspensions for two other judges who participated in the same incident at levels falling short
of criminality); Matter of Page, 69 N.E.3d 470 (Ind. 2017) (public reprimand for OWI); Matter of
Hughes, 947 N.E.2d 418 (Ind. 2011) (same).



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020                          Page 14 of 19
reinstatement, based largely on actions taken by Respondent and
members of his team in the wake of the unauthorized disclosure of the
Taft Report, actions the hearing officer viewed as significantly aggravating
in nature.

   Because those actions are established in the record primarily through a
series of emails and attachments admitted into evidence over
Respondent’s objection, and Respondent has renewed those objections in
his petition for review, we must first briefly address the admissibility of
those exhibits. Prior to and during the final hearing, Respondent
alternately objected to these emails on grounds of hearsay, relevance, and
attorney-client privilege. Rather than developing these arguments with
respect to each email in his petition for review though, Respondent merely
incorporates a chart listing each item and each ground for objection. (Br. in
Supp. of Pet. for Rev. at 20 & Ex. 2). We likewise need not pause long on
the admissibility of each individual email, and we find the hearing officer
did not abuse her discretion in admitting them. Respondent’s claim of
privilege, based on the notion that the emails contain legal advice
rendered to him in his capacity as Attorney General by counsel within his
office, is fundamentally at odds with Respondent’s insistence that only his
private conduct is at issue and that his office employees participated in
these team endeavors on their own personal time, using their own private
email accounts, and in their personal capacities as Respondent’s political
supporters. Simply put, Respondent cannot have it both ways.
Respondent’s hearsay objections likewise are unpersuasive because the
emails were not admitted for the truth of the matters asserted therein but
rather the implications that may be drawn from them regarding
Respondent’s alleged lack of insight or remorse into his misconduct. And
for this same reason, these emails are relevant enough to factors bearing
on sanction to survive an admissibility challenge.

  However, upon careful review of these emails and attachments, we find
them only minimally relevant to the question of an appropriate sanction.
Importantly, Respondent’s own degree of participation in the email chains
admitted into evidence is minimal and perfunctory. And while several
emails indeed reflect extremely poorly on various members of



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020        Page 15 of 19
Respondent’s team,5 there is little evidence linking those team members’
musings to Respondent’s direction beyond whatever presumption might
be drawn from the agency relationship. The Commission argues it “strains
credulity” to believe “that Respondent was not in control of what his team
was doing on his behalf[.]” (Resp. to Pet. for Rev. at 27 n.13). While this is
undoubtedly true in a general sense, we do not believe Respondent is
personally responsible for every poor word choice or ill-conceived idea
proposed by individual team members in emails or draft documents,
many of which were voted down by other team members and never made
their way into publicly-disseminated materials.

   We also find that certain actions taken by team members—and, with
some exception, Respondent’s own actions—were intended to address the
particular process that led to the public accusations against Respondent
rather than to directly impugn the credibility of the four women
themselves. All involved in this process—the four women, Respondent,
and legislative leaders—appropriately decried the unauthorized leaking
of the Taft Report by a legislative staffer. Respondent’s public criticisms of
that process are valid and do not speak to any negative characteristics
relevant to sanction. The Taft Report was privately commissioned by
legislative leaders to examine potential employment-law issues arising
from the events of the party. Its purpose was not to test the credibility of
the four women or to conduct a detailed factual investigation against
Respondent. Yet, when the report was leaked into the public domain, it
was received by the public as a report finding and exposing misconduct




5 These include press releases drafted by one team member and edited by another intended to
“expose [N.D.]” (Ex. 15-16); another team member’s suggestion to refer to declarants and
others involved with the Taft Report commissioned by the Legislature as “Leakers and Liars”
(Ex. 24-27); a rejected suggestion by a team member to refer to the allegations against
Respondent as a “lynching” (Ex. 28); phony letters to the editor and editorials drafted by team
members (Ex. 35-37, 39, 57-58); and hired consultants’ suggestion after the Commission filed
its disciplinary complaint against Respondent to dig up negative background on Commission
members and then “shop portions of research enclosed no fingerprints to national
conservative outlet to generate piece that friends would use with grassroots folks,” to which a
team member within the Attorney General’s office responded “I think it would be a good
idea” (Ex. 56).



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020                        Page 16 of 19
by Respondent. Respondent was fully entitled at this point to mount a
public defense against the process that led to the matter being
inappropriately released into the public domain. And to the extent
Respondent’s public defense also involved a simple, straightforward
denial of some of the behaviors attributed to him in the Taft Report, he
was entitled to do that as well.6

  However, in terms of his own direct actions, Respondent went a step
too far in decrying the allegations against him as not only “false” but
“vicious” in a press release issued shortly after the Taft Report was leaked.
(Exs. 1-2). Read in context, Respondent’s use of the word “vicious,”
bookended by references to the allegations against him, implied malice or
bad faith by the four women. Respondent claimed at the final hearing that
his use of the term “vicious” was directed at the process and not at the
individual accusers (Tr. Vol. 4 at 176), but the hearing officer was not
persuaded and we defer to her first-hand assessment of that testimony.

   Respondent also went a step too far in issuing a subsequent press
release in which he drew attention to, and published, a message written
by N.D. to a friend but mistakenly sent to an email account associated
with the Office of Attorney General. (Ex. 7). In that press release,
Respondent referred to N.D.’s account as a “draft story” and an
“editorialized . . . recollection of events,” and Respondent characterized
the email as evidence of “various stories . . . coordinated and changed
under the direction of others.” (Id.) Like Respondent’s use of the word
“vicious” in the earlier press release, this press release in context contains
a clear implication of malice and bad faith by the women and not mere
disagreement regarding the substance of the accusations. Moreover, as
observed by the hearing officer, Respondent’s gratuitous publication of
N.D.’s email “could serve only to intimidate [N.D.] and anyone else
thinking of stepping forward.” (HO’s Report at 35).




6As noted by the hearing officer, “[n]either the Respondent nor [the four women] were
satisfied with the accuracy of the Taft Report.” (HO’s Report at 16 n.2).



Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020                      Page 17 of 19
   In sum, we find Respondent’s actions in the wake of the disclosure of
the Taft Report do carry some aggravating weight, but not to an extent
that entails the type of wholesale lack of insight or lack of remorse that
ordinarily would prompt us to require a respondent attorney to undergo
the reinstatement process in order to prove his fitness to resume the
practice of law. Many of our past disciplinary dispositions have not had
occasion to expound in great detail upon an attorney’s demonstrations of
insight or remorse, or lack thereof, and have simply cited the aggravating
or mitigating factor without further discussion. Respondent correctly
observes, though, that questions of insight and remorse in many cases are
more appropriately weighed on a spectrum rather than as binary, all-or-
nothing propositions. (See Respondent’s Reply Br. at 8). This is one of
those cases. Although Respondent strayed past an appropriate line in
some of his conduct after the Taft Report was leaked, he was apologetic in
his initial discussions with legislative leaders before the leak, and in a
press release after the leak Respondent maintained his innocence but
simultaneously emphasized that “[v]ictims of sexual abuse and/or sexual
harassment deserve to have their voices heard.” (Ex. 3).

   The hearing officer’s report and the parties’ briefs point to additional
factors that are aggravating or mitigating to varying degrees.
Respondent’s acts of misconduct were committed against four women,
albeit on a single occasion. The victims have suffered significant harm
that, while certainly exacerbated by other events, was caused most
proximately by Respondent’s misconduct. Respondent’s substantial
experience in the practice of law, almost all of which has been spent in a
prosecutorial capacity, counsels that he should have known better than to
conduct himself at the bar in the manner he did; but that same experience,
consisting of roughly three decades of public service without prior
discipline, also carries mitigating weight.

   At the end of the day, Respondent urges that “similar cases should be
treated similarly” and that we should treat him no better or no worse than
any other attorney. (Br. in Supp. of Pet. for Rev. at 51-52). In light of our
consideration of the nature of Respondent’s misconduct, the aggravating
and mitigating circumstances, and the short suspensions with automatic
reinstatement we imposed on the attorney who battered his client (May),


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020          Page 18 of 19
the prosecutor who battered his romantic partner (Walker), and the judge
who battered a third party (Adams), we conclude that a similar result
should obtain here.


Conclusion
  The Court concludes that Respondent violated Professional Conduct
Rules 8.4(b) and 8.4(d). The Court finds in favor of Respondent on the
Oath of Attorneys charge.

   For Respondent’s professional misconduct, the Court suspends
Respondent from the practice of law in this state for a period of 30 days,
beginning May 18, 2020. Respondent shall not undertake any new legal
matters between service of this opinion and the effective date of the
suspension, and Respondent shall fulfill all the duties of a suspended
attorney under Admission and Discipline Rule 23(26). At the conclusion of
the period of suspension, provided there are no other suspensions then in
effect, Respondent shall be automatically reinstated to the practice of law,
subject to the conditions of Admission and Discipline Rule 23(18)(a). The
costs of this proceeding are assessed against Respondent, and the hearing
officer appointed in this case is discharged with the Court’s appreciation.


All Justices concur.


ATTORNEYS FOR RESPONDENT
Donald R. Lundberg
James H. Voyles
Jennifer M. Lukemeyer
Indianapolis, Indiana

ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
Charles M. Kidd, Acting Executive Director
Seth T. Pruden, Staff Attorney
Angie Ordway, Staff Attorney
Indianapolis, Indiana


Indiana Supreme Court | Case No. 19S-DI-156 | May 11, 2020        Page 19 of 19
