Thursday, June 13, 2019

The Forum Of Hate: Emails Draw Bar Charges

Maryland Bar Counsel has recently filed charges alleging that two attorneys engaged in misconduct in emails

Mr. Markey was admitted to the Bar of this Court on December 14, 1994. From 1995 to 2007, Mr. Markey was employed at the Board of Veterans’ Appeals (“BVA”) at the Department 0f Veterans’ Affairs (“VA”). Mr. Markey was appointed Veterans’ Law Judge for the BVA in December 2007.

Mr. Hancock was admitted to the Bar of this Court on December 15, 1988. From September 1995 to January 2016, Mr. Hancock was employed as an Attorney Advisor at the BVA at the VA.

From 2008 to 2015, Mr. Markey and Mr. Hancock, while respectively serving as Veterans' Law Judge and an Attorney-Advisor, participated in sending and receiving emails between themselves and three other BVA employees, Bernard DoMinh, John Prichard and Dennis Chiappetta.‘

The five employees referred to their email chain as the “Forum of Hate” (“FOH”) and referred to themselves as FOH members.

The five employees, including Mr. Markey and Mr. Hancock, used their official government email accounts to send and receive FOH emails.

The quoted emails begin in 2008 and involve disparaging and obscene remarks of a sexist, racist and homophobic nature, e.g., this about a hated colleague

Mr. Hancock: Not to mention despicable impersonation of human woman, who ought to her cervix yanked out of her by the Silence of the Lamb guy, and force fed to her. Whew, might be hated out. ..

Mr. Markey: Holy shit gate, Batman. Never has morale been so low, and that’s saying something.

They refer to that colleague as G-Pot

The Respondents defined G-Pot as standing for Ghetto Hippopotamus and refers to a specific BVA Chief Veterans’ Law Judge.

An email exchange concerning Hancock's son's all-white baseball team

Mr.Hancock: First baseball practice. Not Charo, Adrian, or BD in the bunch.

Mr. Markey: Nice, but where are the white sheets? Gotta start them when they are young.

Mr. Chiappetta: Come on James, that is the name of the kid’s team: “The Maryland White Sheets."

Mr. Markey: Of Course, my bad. ‘Bon fire’ after every victory.

Mr. Hancock: Nice management hate. Bout time!!

And on a photo of four BVA employees

Mr. Hancock: Who’s the chick beside Amy Crazy in the top right pic; not the terrorist.

Mr.DoMinh: Vicki Bren: BVA attorney 1995-97. actually got introduced to Markey through her.

Mr. Hancock: Like to have my pee pee introduced to her va jay jay.

Mr. Markey: No pic is much better than how she looked in person.

More

On or about December 1, 2013, Mr. Markey and Mr. Hancock participated in the following email chain mocking BVA Deputy Vice Chairman’s accent...

On or about May 20, 2014, Mr. Markey and Mr. Hancock participated in the following email chain that contained racist and homosexual slurs...

On or about August 28, 2014, Mr. Hancock participated in an email chain, stating “[t]hought of her on the train this morning when read this sentence in book I’m reading. True. Here’s the sentence: ‘you’re so fat your cunt probably turns inside out when you sit down,” regarding female Chief Veterans’ Law Judge.

The uncovering

The emails were discovered by the Veterans’ Affairs Office of Inspector General during an unrelated investigation. Mr. Markey and Mr. Hancock only stopped engaging in the FOH emails after they were confronted regarding their conduct.

The alleged rule violations

Rule 8.4. Misconduct.
It is professional misconduct for lawyer to:
(a) Violate or attempt to violate the Maryland Lawyers’ Rules 0f Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) knowingly manifest by words or conduct when acting in professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not violation of this paragraph.

The focus here will be on the Rule 8.4(e) charge, as the (a) allegation adds nothing substantive and the (d) charge is borderline frivolous. 

Do repulsive emails intended to be private and exchanged between like-minded persons violate Rule 8.4(e)? 

Were the accused attorneys acting in a professional capacity?

Does the fact that they were exchanged on official government accounts matter?

Keep an eye on this one.

The case is Attorney Grievance Commission of Maryland v. Markey and Hancock, Misc. Docket No. 5 (September Term 2019).

The Wall Street Journal reported on the agency action against the Forum

The Department of Veterans Affairs disciplined two judges and proposed action against three staff attorneys after an internal investigation revealed email exchanges that allegedly carried discriminatory remarks.

The five staff members at the Board of Veterans Appeals, a VA administrative court in Washington, D.C., that handles appeals over veterans’ claims, were implicated in a “pattern of inappropriate emails that were racist and sexist in tone,” VA officials said.

The department said it proposed disciplinary action against the three attorneys in January and has filed a complaint against the two judges.

The moves come as the VA has battled criticism in recent years for long backlogs and extended wait times in managing veterans’ health care and disability compensation. The latest action raises questions as to whether appeals from minority veterans received a fair hearing.

The VA said it is reviewing cases assessed by the individuals to determine if any decisions were affected. “At this time, we have no indication that any veteran’s appeal was unjustly influenced by their conduct,” the VA said in a statement.

Once received by the board, a veteran’s appeals claim is examined by an attorney, who writes it up and recommends a course of action before handing off the files to a judge. The judge reviews the case and determines whether to sign off on the decision. The Board of Appeals decided on 55,532 cases in 2014, the majority of which—95%—were related to compensation claims, according to the VA.

An investigation by the Office of the Inspector General, the VA’s watchdog, discovered the emails in September and brought the information to the VA, according to the OIG. The VA immediately removed the suspected employees from handling cases, according to the agency.

The judges involved were Dennis Chiappetta and James Markey, according to people familiar with the matter. Two of the three attorneys were Bernard DoMinh and Charles Hancock, the people familiar said. The Wall Street Journal was unable to ascertain the name of the third attorney.

Mathew Tully, an attorney for Mr. Markey, said the issue is “currently in active litigation.

“In the interest of preserving the objectivity of the administrative process that is charged with deciding this matter, we think it best to allow the legal system to bring an end to the gossip and character assassination...,” Mr. Tully said.

Mr. DoMinh didn’t respond to requests for comment. Messrs. Chiappetta and Hancock couldn’t be immediately reached.

On Jan. 15, the board’s judges held meetings with their staff to discuss the ramifications of the events, according to a person familiar with the matter. Possible responses proposed by the staffers included redoing hearings to vacating decisions, the person said.

The conduct resulted in this litigation filed in the United States District Court for the District of Connecticut in March 2018

Bias, homophobia, and sexism have no place in the Department of Veterans Affairs (VA), which is tasked with fairly adjudicating veterans’ claims for disability benefits, including those based on military sexual assault. Yet, from 2007 to late 2015, multiple senior Veterans Law Judges and attorneys at the Board of Veterans Appeals routinely exchanged bigoted messages over government email and in an online message board that they called the “Forum of Hate.” These messages—which included slurs referring to male VA employees as “butt buddies” and speculating about whether male coworkers engaged in oral sex with one another—reveal alarming homophobic attitudes by VA adjudicators. More disturbingly, such attitudes seem to reflect a widespread culture of bias within the VA, potentially leading to the unlawful denial of male survivors’ disability claims, as male survivors of sexual assault are often already disbelieved, feminized, and stereotyped as gay because of the pernicious myth that heterosexual “men don’t get raped.”

In the summer of 2017, Plaintiffs Protect Our Defenders and Connecticut Veterans Legal Center, made requests under the Freedom of Information Act to obtain records to reveal whether systemic bias within the VA has resulted in discriminatory adjudication of benefits claims, violating the rights of male veterans who experience military sexual trauma. Plaintiffs fear that the VA discriminates against male veterans due to a biased belief that male survivors are less credible and deserving of benefits than female survivors.

More than six months later, the VA has failed to disclose records about disparities in the grant and denial rates of male military sexual trauma survivors’ disability claims—data that goes to the heart of plaintiffs’ requests. The VA has also made no apparent effort to investigate the full scope of the VA’s homophobic and sexist culture, to address the root causes of bias in its adjudicatory processes, and to provide restitution to veterans victimized by its biased decision making. The VA’s failure to uncover the full scale of the bigotry within its system undermines veterans’ ability to trust that their assigned Veterans Law Judge will adjudicate their claim on the basis of the facts, not their gender. The public—and the many veterans who seek benefits for the sexual trauma they experienced during service—deserve answers as quickly as possible.

The underlying emails  are set out in this opinion on the judge's removal before the Merit Systems Protection Board.

The Board found good cause for his removal.

While there was "no evidence whether Respondent's decisions were in fact biased...the fact remains that he expressed and condoned those views ." 

The Board describes the ensuing adverse publicity and gives little weight to his claim that he was venting as a response to a "toxic work environment." (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/06/maryland-bar-counsel-has-recently-filed-charges-alleging-that-two-attorneys-engaged-in-misconduct-in-emails-mr-markey-was-a.html

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