More On Indiana Lawyers Not Having Free Speech Rights: Attorney Suspended For Referring To Mother As "Illegal Immigrant"

Indiana attorneys beware. If you refer to an opposing party as an "illegal alien," you may face suspension from the practice of law by the Indiana Supreme Court. Martinsville attorney Joseph Barker learned that the hard way. The Supreme Court this week unanimously affirmed a disciplinary hearing officer's recommendation of a 30-day suspension of Barker, who argued to the Court that referring to the mother of his client's child as an "illegal immigrant" in a letter to opposing counsel was legitimate advocacy in explaining why she "doesn't understand what laws and court orders mean" given her repeated refusal to allow his client to exercise his parenting time rights as ordered by the court. The Supreme Court disagreed.

[R]egardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantive purpose other than to embarrass or burden Mother. The Court therefore concludes that Respondent violated both Rule 4.4(a) and Rule 8.4(g) as charged.

 

Although Barker has never previously been disciplined in his 45-year history of practicing law in Indiana, the Court felt suspension was required because he "has not apologized to Mother." The opinion doesn't indicate whether Barker's assertion of the Mother's legal status was factual. The hearing officer given the additional task of hearing Barker's case was Marion Superior Court Judge Kimberly Brown, who his is herself the subject of a disciplinary complaint initiated against her by the Judicial Qualifications Commission, which is seeking her immediate removal from the bench based on allegations of delay and dereliction of judicial duties and creating a hostile work environment for court staff, attorneys and subordinate judicial officers, among other things.

The Indiana Law Blog's Marcia Oddi comments on the Supreme Court's Order suspending Barker for 30 days for calling the Mother an illegal alien: "Notably, a Westlaw search shows "illegal alien" used 57 times in Indiana cases. Some within recent months: Supreme Court (June 25, 2013, ftnote on p. 10); Court of Appeals (July 30, 2013, p. 8)." As an immigration lawyer, several years ago I was counseled by immigration advocates to use the term "undocumented" rather than "illegal alien." Later, it was suggested the term "out of status" was less offensive than "undocumented." Now we're counseled to refer to aliens in the country illegally as "aspiring immigrants." It's difficult to keep up on the politically-correct usage of words in this country.

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