FOR THE RESPONDENT
Ronald E. Elberger
Robert B. Clemens
BOSE McKINNEY & EVANS
G. Daniel Kelley, Jr.
Thomas E. Mixdorf
FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION
Donald R. Lundberg
Charles M. Kidd, Staff Attorney
INDIANA CIVIL LIBERTIES UNION, INC.
Kenneth J. Falk
DEFENSE TRIAL COUNSEL OF INDIANA
James D. Johnson
INDIANA SUPREME COURT
IN THE MATTER OF )
MICHAEL A. WILKINS, )
ON PETITION FOR REHEARING
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.
February 4, 2003
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.
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. II.
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).
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
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
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.
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 Courts 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 respondents 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 issuein this case
the proper sanctionthe 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.