Former Indiana Attorney Blows the Whistle on Corruption at the Indiana Supreme Court

Indiana Supreme Court Justices

After nearly a month of reaching messages and phone calls, he gave in and agreed to appear and tell Hoosiers and the HE Podcast Host, Gabe Whitely about how equal protection and due process are not protected in Indiana.

The status quo is selective prosecutions counterbalanced with targeting of a few for show trial.  Sound familiar?   It leaves everyone wondering if lawyer regulation is in fact best left to the marketplace instead of the Indiana Supreme Court Attorney Disciplinary Commission (“the Commission”) and ultimately to those learned Indiana University Alumnae Justices of the Indiana Supreme Court?  They were granted exclusive authority by the Indiana Constitution, which may need amending.

We know now that it is true in Indiana that too many notorious TV lawyers who have stolen client funds have been prosecuted first before they lost their law licenses. This fact leaves everyone wondering whether the Criminal justice system in fact best regulates lawyers absent the Commission.

The Commission completely missed once-prominent Indianapolis, personal injury attorney James Conour, who in 2013 was convicted of defrauding clients and sentenced to 10 years in prison. He was found guilty of stealing over $4.5 million from clients over a decade, including using settlement funds to pay off old debts.  

In South Bend, Eric Marshall,  former South Bend elder law attorney and community leader charged with mail fraud and accused of stealing clients' investments, was caught in 2019 in Florida after running from criminal charges, and the list is long. Again, the criminal justice system showed its teeth, while Marshall also an Indiana CPA had operated in the shadows.

 The Commission, thin in In Matter of Mendenhall, 959 N.E.2d 254 (Ind. 2012), Respondent was disbarred after being found guilty but mentally ill of five crimes, including attempted murder.  In In Re Patterson, (Ind. 2012), the respondent Indiana lawyer was convicted of three counts of class D felony theft of client funds. The Respondent was charged with stealing from 24 clients.  The Respondent had a prior discipline history for stealing from his law firm’s trust account and practicing law during a prior period of suspension. 

Where was the Commission’s legal oversight for his numerous victims?

It is fair to say the Commission is highly ineffective at barring lawyers in the state.  They seem worse even at investigating or knowing facts from fiction within the ethics process. It must be embarrassing to both the Commission and SCOIN to fail so often.  In medicine or any science, so many false negatives and false positives would stop the treatment or change the methodology, but not in law -- where this inbred self-protecting group thinkers double down, rarely lose or rule against themselves, and never ever admit error(s).

Lawyers who fail to cooperate with the discipline investigation process are subject to an administrative license suspension. The Indiana Judges and Lawyers Assistance Program (“JLAP”) purportedly provides assistance to judges, lawyers, and law students who may experience physical or mental impairments that result from disease, chemical dependency, mental health problems, or age that could impair their ability to practice in a competent and professional manner.  But none of this centralized system is working well at all, if you ask those who should know.  And those with DUI are now not suspended, but other lawyers with no drug or drinking problems are.

Punished  in Indiana in 2017 for a case that was responded to and then summarily dismissed dating back to 2013, Bernacchi had the grievance, known as an RFI, or Request ForInformation,  reopened and prosecuted without new information, and again the Commission proceeded without hearing on the merits, no due process.

A lawyer living in Granger IN, in St. Joseph County, at the time, he was denied a hearing on the merits by his hearing officer in Judge Sheila Moss in Crown Point “unless the state prosecutor Aaron Johnson agrees, and he isn’t agreeing she told Mr. Bernacchi in a 2017 pretrial.  His case was reopened by Johnson, who told Bernacchi by telephone when Bernacchi was seeking a judicial bench and Johnson knew that.  Johnson, a new prosecutor at the Commission, naively admitted “[He didn’t] I don’t relish being the one in the office chosen to put you out of business.”  To which Bernacchi retorted, “for what?” 

That was when he learned that Ms. Sharon Brown Perry’s 2013 and previously dismissed grievance/RFI was being reopened by the Commission’s Director G. Michael Witte for a full investigation. Bernacchi asked, “On what new evidence”?  To which he got no reply from Johnson, who later denied his first conversation with Bernacchi. 

“I faced many opposing counsel and lawyers and even lying clients, but I never faced anyone who lied to my face and on paper like JLAP, the Indiana Supreme Court employees, Witte, Johnson and my hearing officer, Sheila Moss.  She ran a kangaroo court hearing for sure.  They were the most unethical people I ever encountered in my life, and it isn't rich that they were the ones selected to enforce ethics in the state?” Bernacchi concluded.

Sounds about right, doesn’t it?  And they wonder why now the public lacks faith in the courts, judges, and the state’s legal system under Indiana’s DEI Chief Justice Loretta Rush.

Johnson, another DEI hirer at the Commission also lied when he denied that he attempted to convince another former Bernacchi law client, a black woman named Barbara Major who called down to the Commission from Michigan City to complain about her lawyer in Valparaiso.

When she mentioned Bernacchi had once represented successfully in a case to the anti-Bernacchi receptionist at the Commission, she was transferred to Mr. Johnson, who tried to suborn her perjury to aid him prosecuting Bernacchi by asking and almost demanding her to help him put Mr. Bernacchi out of business.  Johnson falsely told Ms. Major that Bernacchi was racist and a bad man.  None of which was true.  This was a clear act of “prosecutorial misconduct,” which was never addressed, charged, or correct, and Mr. Johnson still has his job with the state of Indiana. 

Bernacchi, “said my legal practice on its face proved that I wasn’t racist or unethical, and not incompetent, but Mr. Johnson was a racist tool, the most unethical lawyer in quotes, I ever met, and he was very incompetent. He tricked me which is illegal, He trick the Commission members, and he as dumb as he was, was the law in a one-sided ‘high tech lynching.’” That was the term Bernacchi used quoting U.S. Supreme Court Justice Clarence Thomas.

Bernacchi went on, “Johnson tricked me more than once, because in the beginning, I trusted the process and knew I did nothing wrong.  I never had violated rules or needed to do so.”  But  Johnson proved to be a state employed liar who told Bernacchi, “I don’t find you incompetent, and won’t be charging you with that.”  But he did in an Amended Verified Complaint which was needed after the first Verified Complaint Johnson filed in the case was self-conflicting under oath.  The charge of incompetence and other charges were added.

Before a case was even filed, and the state had the right to discovery, Johnson served discovery on Bernacchi in the form of Request for Admissions, which on their face were deemed admitted even if not answered by a date that had already passed.  Was it incompetence or a set up?  Bernacchi called Johnson who he described as Rude, and was adamant that the date was correct, and the many false allegations were thus admitted.  Bernacchi, who had a full client load, stayed up late filing his emergency written response to that fiasco by Johnson stating that Johnson, not Bernacchi, “should be made redundant.”  In English, that means "sacked, fired," relieved of his official duties, “but due to some spelling errors, they assumed I was unhinged and needed a time out. But I had already been told they intended ‘to put me out of business’ and I was mad and sad—rightly so.  If I did anything wrong it was not sleeping and not proofreading when under attack, as if it would have made any difference.  They are God, almighty, and their will was being done.  It was unreal. There are no checks and balances, the system is rigged.  I called it ‘Kafkaesque,’ and ‘they were too uneducated by his Gary Indiana high school and IU’ to understand the reference and even asked about it at my sanction-only hearing.” Bernacchi did not belong in Indiana and the good deed of his returning home to LaPorte, and St. Joseph Counties educated to help his communities was a mistake, a very costly one in terms of his legal career and sizable legal fees, which he paid in full, $260,000.00, including the title to his collectible Mercedes 500 Convertible.

After 27 years, he concluded, “no good deed goes unpunished.” Without income to pay his mortgages, falsely labeled “unethical,” he lost all his real properties.  His two office locations closed, his employees terminated, and his clients left angry, not knowing what to believe or who would help them if anyone. And mostly, no one did.  Does the SCOIN care? Seems not. They are too powerful, unchecked, and have too long terms and high salaries relative to the average Hoosier.  Justice Mark Massa is a dinosaur on the court with CJ Rush not far behind.

That was just the start of what Mr. Bernacchi told HE. In the end, he and his lawyer Thomas F. Godfrey III at the December 19, 2016, “sanction only hearing,” were denied any witnesses, even in rebuttal of actual perjury that “his incompetence lost his Ms. Perry’s home which she shared with her (17.9 year old) grandson, which was in fact lost many months earlier according the real estate recorded documents, and before she even contacted Mr. Bernacchi by telephone to help her, which he tried to do.  It was her, not him, that failed to appear at two consecutive Child Support hearings that had nothing remotely to do with any home or real property, when she told him she was on her way and never showed up.  The facts never mattered, why not?

On July 31, 2013, after hiring him prior to May 30, 2013, hearing –the first one she missed—she told him to withdraw, never having met in person, and saying, “it was all her fault, she didn’t drive to South Bend for Kalamazoo.”  She collected nearly $8,000.00 in back support because Bernacchi went to court at the JJC.  Oddly, she never missed a hearing, or deposition against Attorney Bernacchi. But the state sent a car to pick her up to the same apartment where she lived when she called Mr. Bernacchi, to either seek his help or set him up.  She never moved or lost any home since December 2011 when her Kalamazoo home was foreclosed by a land contract seller due to her breach. According to recorded real estate records and court documents in Kalamazoo, MI, Bernacchi had nothing to do with any of it, and yet, our SCOIN blamed Bernacchi, somehow, and cited him publicly in their false order of incompetently representing her.  Bernacchi’s response, “Quite simply, I was help responsible for her own negligence, noting that she never sued for me legal malpractice, she only sought to extort money from me and my staff, claiming to have a ‘friend’ at ‘the committee’ presumably Aaron Johnson, originally from Gary, Indiana, or ‘some other DEI member’ of the Commission.”

But the facts didn’t matter, not for the Honorable Justices on the SCOIN or for G. Michael Witte, or his subordinate Johnson, or for the Hearing Officer, Moss, who took nearly 7 months to rule after a two-hour hearing with no witnesses for the defense allowed, suggesting in her June 2017 Order, a 6-month suspension “with a path for near automatic reinstatement.  Her path required psychiatric testing, even though there were no allegations regarding any illnesses or fitness, or any evidence at any time in my life of a need for any such treatment or counseling, just fairness which was completely absent.”  The JLAP, itself, even missed their appointments to meet him to discuss the stress of the witch hunt.  Bernacchi was a rock with a big dog peeing on him and most dogs will die in 10 years, so he stays a rock.

SCOIN ordered a one-year suspension without automatic reinstatement in Mid-October 2017, and then gave him no fair amount time to close his busy law practice of 27 years.  The marketplace did not regulate him out of business as it does quickly to incompetent lawyers or as the police do to criminal lawyers.  He was neither, yet he got cancelled, wrongly, and has no recourse.

“They might as well have given me a death sentence for nothing but seeking to help a lying woman who sought endless to extort me and even did with Johnson’s help, but a ‘career death sentence’ that is effectively what they did without being so honest.” Bernacchi concluded.

No smart person should go to law school and so they invite only truly bad people into the club--that is, the legal profession in Indiana today and it is so sad what is left,” he continued by telephone.

So, when he was seeking to become a judge in Indiana, suddenly he became “under investigation of old previously dismissed ethics violations”, which was par for the course for Republicans seeking to become judges it appears now looking back. Attorney Bernacchi maintains his innocence and blames the duress of being put in a “perjury trap” much like General Flynn was, as the only reason he was found liable. But there are no facts at all to support his ethics case convictions, and there is evidence of state sponsored perjury refuted by court and recorded real estate records.

He is right. There were no real facts to support his suspension—that way he was not given a real trial.  Except in Indiana courts, its highest court, and at the Commission, the facts do not matter when the people who make the rules, change the rules, lie with impunity, obstruct justice, and are, themselves, criminally corrupt and completely unethical.

The courts and the Commission serve mostly to spread fear amongst the members of the state bar as a way to exert power, control, and dominance over an otherwise independent and relatively smart lot, who are being denied free speech, or the ability to effectuate much needed legal reforms in the state.  It is through the use of inconsistent, selective show trials that compliance is cohered in the absence of readable, or understandable rules that should be reformed and replaced and codified, including Doug’s Law.  A gatekeeper suggestion to reduce the number of RFIs and yet have everyone heard, rather dismissed as part of the state bar protection racket for some.

HE agrees “nobody in Indiana should go to law school if the standard is to destroy the lives of some lawyers while dismissing mounds of valid client complaints against other lawyers, who attend the right law schools.”  He also said, “no law school is any good, and most have no idea of job requirements when they pass the bar.  In short, the problem with America’s Lawyers, other than the American Bar Association, is caused by the nation’s law schools.”

HE apologized to Doug Bernacchi and the many other lawyers who have endured unjustified court abuse under the current corrupt and proven thoroughly inept regime