November 2005
Featured Disciplinary Case
Topic
Injecting race into a judicial proceeding where it is not relevant is offensive, unprofessional and warrants public sanction.
Summary
In the Matter of Dorothy J. Thomsen, 49S00-0502-DI-36 (Indiana November 29, 2005). In a case of first impression in Indiana, the Supreme Court reprimanded an Indianapolis practitioner for violating Professional Conduct Rule 8.4(g), a provision that prohibits, in relevant part, a lawyer from manifesting by words or conduct in a professional capacity any bias or prejudice based upon race. The Court issued an opinion to alert the public and the profession about the existence of the rule and to emphasize that injecting race into proceedings where it is not relevant is offensive, unprofessional and tarnishes the image of the profession as a whole. Thomsen represented a husband in a divorce filed by his wife. Custody of the couple’s children was in dispute. During the course of custody proceedings, she filed a petition that stated:
The wife continues to associate herself around town in the presence of a black male, and such association is causing and is placing the children in harm’s way….Said black male has resided at the home of the wife and children, for lengthy periods of time, while “fixing the computer.” The behavior is placing the children in harms way and should be stopped immediately.
During subsequent court appearances in Morgan County, Thomsen referred to the man described in her petition as “the black guy” and the “black man.” Further, when the wife testified that a “black kid across the street [was] yelling racial slurs at them…” Thomsen replied, “Well, you’re used to that. I mean you have them in your home.” Additionally, when evidence was introduced about dead animals being placed on the wife’s porch and in her yard, Thomsen asked, “[C]ould your animals or your dog have been killed as [sic] the problem that’s been going on in the neighborhood with regard to the black man you had at your house?” The Court found that legitimate advocacy respecting race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors does not violate Rule 8.4(g), but noted that race was not relevant in the divorce case According to the Court, Thomsen’s comments:
[O]nly serve to fester wounds caused by past discrimination and encourage future intolerance. Unfortunately, we know that conduct of the type exhibited by respondent here is not an isolated occurrence. Our Commission on Race and Gender Fairness reported in 2002, that a significant minority of those surveyed had “…observed courtroom harassment and disparagement on the basis of gender, ethnicity or race …” Indiana Supreme Court Commission of Race and Gender Fairness, Executive Report and Recommendations, p.6, (2002). There is no place for such conduct in our courts.
