Wednesday, October 9, 2013

Indiana Supreme Court: Bias Allegations In Recusal Motion Not Sanctionable

The Indiana Supreme Court has entered judgment in favor of an attorney accused of misconduct based on statements made in support of a motion for a change of judge.

The attorney represented pro-life demonstrators arrested for protesting the award of an honorary degree to President Obama by the University of Notre Dame. He intended to present the "novel defense" that the defendants had a "contractual right to pray on the Notre Dame campus originating in Catholic canon law."

The judge assigned to the case is married to a tenured and retired Notre Dame professor. The judge previously had presided in a case involving a pro-life supporter.

The attorney moved for recusal "based on [the judge's] husband's] alleged advocacy in favor of pro-choice causes and academic freedom for Notre Dame, along with [the judge's] failure to disclose this alleged advocacy."

The Disciplinary Commission filed charges alleging that the attorney had violated Rule 8.2(a) for statements about the judge in the recusal pleadings.

A hearing officer found that some of three statements ran afoul of the prohibition. The attorney appealed.

The court applied an "objective" test in determining the rule violation.

Here,  the statements made in the recusal motion

were made not just within, but as material allegations of, a judicial proceeding seeking a change of judge on three grounds, each of which affirmatively requires alleging personal bias on the part of the judge.

While a motion for recusal on bias grounds is "inherently sensistive"

We will...interpret Rule 8.2(a)'s limits to be the least restrictive when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge's decision. In any other context, counsel's advocacy would be limited by Professional Conduct Rule 3.1 [and the parallel civil rule]...And while criticism of a judge necessarily implicates Rule 8.2(a), even in genuine professional advocacy, any further restrictions on counsel's advocacy on that sensitive subject should be as minimal as possible.

Applying the principles articulated in the opinion, the court "readily conclude[d] that the Rerspondent's statements were not sanctionable."

Thanks to Don Lundberg for sending the opinion to me. (Mike Frisch)

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