FOR THE RESPONDENT
Ronald E. Elberger
Robert B. Clemens
BOSE McKINNEY & EVANS
Indianapolis, Indiana
G. Daniel Kelley, Jr.
Thomas E. Mixdorf
ICE MILLER
Indianapolis, Indiana
FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION
Donald R. Lundberg
Executive Secretary
Charles M. Kidd, Staff Attorney
Indianapolis, Indiana
AMICI CURIAE
INDIANA CIVIL LIBERTIES UNION, INC.
Kenneth J. Falk
Indianapolis, Indiana
DEFENSE TRIAL COUNSEL OF INDIANA
James D. Johnson
Evansville, Indiana
In The
INDIANA SUPREME COURT
IN THE MATTER OF )
) 49S00-0005-DI-341
MICHAEL A. WILKINS, )
Respondent )
________________________________________________
DISCIPLINARY ACTION
ON PETITION FOR REHEARING
________________________________________________
February 4, 2003
DICKSON, Justice
The respondent in this attorney discipline matter seeks rehearing
following our per curiam opinion, Matter of Wilkins, 777 N.E.2d 714 (Ind.
2002), which held that certain remarks in the respondent's brief supporting
his petition for transfer in a prior case violated Indiana Professional
Conduct Rule 8.2(a) and warranted his suspension from the practice of law
for thirty days. His petition requests reconsideration of (1) the
application of the First Amendment protection to the offending remarks, and
(2) the appropriate sanction to be imposed.
We dispose of these requests largely on the difference between sound
advocacy and defamation. Lawyers are completely free to criticize the
decisions of judges. As licensed professionals, they are not free to make
recklessly false claims about a judge's integrity.
I.
We decline to grant rehearing as to the First Amendment issue. Aside
from First Amendment considerations, however, we acknowledge that important
interests of judicial administration require considerable latitude
regarding the content of assertions in judicial pleadings, motions, and
briefs. Just as we must seek to preserve the public respect and confidence
in the judiciary, in prescribing practice and procedures for the proper
administration of justice we must also preserve the right of a party to
access and use the judicial system to present a "good faith argument for an
extension, modification, or reversal of existing law." Ind. Professional
Conduct Rule 3.1. The Comment to Rule 3.1 observes: "[T]he law is not
always clear and never is static. Accordingly, in determining the proper
scope of advocacy, account must be taken of the law's ambiguities and
potential for change."
In Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151 (Ind. 1987), this Court
emphasized the need for an appellate tribunal to use extreme restraint in
stifling appellate advocacy: "[W]e cannot fail to recognize that the
imposition of punitive sanctions does have significant negative
consequences. . . . It will have a chilling effect upon the exercise of
the right to appeal. It will discourage innovation and inhibit the
opportunity for periodic reevaluation of controlling precedent." Id. at
152. Concluding that "we must invite, not inhibit, the presentation of new
and creative argument[,]" we held in Orr that "punitive sanctions may not
be imposed to punish lack of merit unless an appellant's contentions and
argument are utterly devoid of all plausibility." Id. at 153.
These considerations are limited, however, by Indiana Professional
Conduct Rule 8.2(a), which provides in relevant part: "A lawyer shall not
make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the . . . integrity of a
judge . . . ." Our per curiam opinion noted that the respondent's brief
suggested that the decision of the judges on the Court of Appeals resulted
from unethical motivations. The offending language consisted of footnote 2
to his brief, stating:
Indeed, the [Court of Appeals] Opinion is so factually and legally
inaccurate that one is left to wonder whether the Court of Appeals was
determined to find for Appellee Sports, Inc., and then said whatever
was necessary to reach that conclusion (regardless of whether the
facts or the law supported its decision).
Wilkins, 777 N.E.2d at 716.
The language of footnote 2 does not merely argue that the Court of
Appeals decision is factually or legally inaccurate. Such would be
permissible advocacy. The footnote goes further and ascribes bias and
favoritism to the judges authoring and concurring in the majority opinion
of the Court of Appeals, and it implies that these judges manufactured a
false rationale in an attempt to justify their pre-conceived desired
outcome. These aspersions transgress the wide latitude given appellate
argument, and they clearly impugn the integrity of a judge in violation of
Professional Conduct Rule 8.2(a). We decline to revise our determination
that the respondent violated Rule 8.2(a).
II.
We grant rehearing in part, however, as to the particular issue of the
appropriate sanction to be imposed for this violation. Upon further
reconsideration we are persuaded to revise the nature of the discipline.
As noted in our per curiam opinion, the respondent timely contacted
the offices of both the Chief Judge of the Indiana Court of Appeals and the
Chief Justice of Indiana, and thereafter wrote to both the Chief Judge and
the Chief Justice "offering to apologize in person and to acknowledge that
the footnote was 'overly-aggressive and inappropriate and should never have
made its way into our Brief.'" Wilkins, 777 N.E.2d at 716.
We also give renewed consideration to the Hearing Officer's findings
that the respondent has maintained an outstanding and exemplary record for
honesty, integrity, and truthfulness among his peers in the Bar, and among
members of the judiciary. This warrants substantial weight. Furthermore,
although the respondent's role in signing and filing the brief constitutes
joint responsibility pursuant to Indiana Admission and Discipline Rule
3(2)(d), we note that the language of the footnote was not authored by the
respondent but by an out-of-state co-counsel.
We find unpersuasive, however, assertions that some other prominent
American lawyers or judges may have engaged in similar techniques of
argument. Such unfortunate occasional resorts to uncivil dialogue should
not be our standard for acceptable Indiana pleading and practice.
Upon rehearing as to the sanction, we conclude that the respondent's
penalty in this disciplinary proceeding should not consist of a period of
suspension but rather only the public reprimand already effected by the
content of our initial per curiam opinion.
Rehearing is granted in part and denied in part, and the respondent's
sanction is revised from a thirty-day suspension from the practice of law
to a public reprimand. Because we are only granting rehearing on a
particular point, rather than a general rehearing, our per curiam opinion
remains in effect except as modified herein. See Griffin v. State, 763
N.E.2d 450, 451 (Ind. 2002).
SHEPARD, C.J., concurs; BOEHM, J., concurs in result with separate opinion;
RUCKER, J., not participating; SULLIVAN, J., dissents, believing
respondent's conduct was speech protected by the First Amendment and so no
sanction is permissible. See In re Wilkins, 777 N.E.2d 714 (Ind. 2002)
(Sullivan, J., dissenting).
BOEHM, Justice, concurring in result.
I continue to adhere to the view that the respondent did nothing that
this Court should find sanctionable. Specifically, I believe the
statements attributed to the respondent are protected by both the First
Amendment to the Constitution of the United States and by Article I,
Section 9 of the Indiana Constitution. Even if these statements were not
constitutionally protected, for the reasons given in my original dissent, I
would not find them to violate the Rules of Professional Responsibility.
Therefore, I would grant rehearing on all aspects of the Court’s initial
opinion. However, there is no majority to grant rehearing on the sanction
unless a public reprimand remains in place. For that reason, I concur in
the result to impose a public reprimand rather than leave in place the
thirty-day suspension already imposed.
The respondent’s petition to rehear this matter arrives in an
extremely unusual procedural posture. Although the full court addressed
the case initially, only four Justices remain to consider the petition to
reconsider. If a majority votes to grant rehearing, the effect is to
recall the former opinion, and Wilkins’ case would be before us “as if it
had never been decided.” 2 Arch N. Bobbitt, Indiana Appellate Practice and
Procedure, § 62:11, at 625 (1972); see also Bally v. Guilford Township Sch.
Corp., 234 Ind. 273, 275, 126 N.E.2d 13, 15 (1954); Booher v. Goldsborough,
44 Ind. 490, 496 (1873); Terrance L. Smith and Anthony DeBonis Jr.,
Appellate Handbook for Indiana Lawyers, §19:8, at 302 (1987). If rehearing
is granted on a single issue—in this case the proper sanction—the original
opinion stands as to all other issues, and only the sanction is vacated.
Griffin v. State, 763 N.E.2d 450 (Ind. 2002).
The votes of the Chief Justice and Justice Dickson are to grant
rehearing as to the sanction only, and to impose a public reprimand.
Justice Sullivan and I would vote for no sanction at all. But if neither
of us joins in the result reached by Justice Dickson and the Chief Justice,
we have no majority to grant rehearing as to any aspect of the original
opinion and Wilkins’ thirty-day suspension stands. Lewis Carroll would
love that result: half the Court believes no sanction is appropriate, and
half would impose a small sanction, so the result is a major penalty. Only
those who love the law could explain that to their children. To free
parents everywhere from that burden, I concur in the result of granting
rehearing as to the sanction and reducing it to a public reprimand.