Friday, February 21, 2020
Findings of fact and conclusions of law have been filed by the hearing judge in a Maryland bar disciplinary case of potentially significant implications in the regulation of attorney hate speech.
The Attorney Grievance Commission had filed charges against two former Bureau of Veterans Affairs attorneys
The December 26, 2019 findings were issued by Judge James Bonifant of the Montgomery County Circuit Court.
Beginning in 2008 and continuing into 2015, Respondents sent and received numerous emails between themselves and three (3) other BVA employees: Chief Veteran Law Judge Dennis Chiappetta, Attorney Bernard DoMinh, and Attorney John Prichard. They used their official government email addresses to send and receive the emails. Pet. Ex. at 5-6. They referred to the email chain as the “Forum of Hate” (“FOH”) and to themselves as FOH members. Pet. Ex. at 6. The emails included many racist, misogynic, xenophobic, and homophobic statements.
The court found the course of conduct - done on government servers and uncovered by a FOIA demand - was prejudicial to the administration of justice and thus violated Rule 8.4(d).
As to Rule 8.4(e)
To violate, Rule 8.4(e), Petitioner is required to show an attorney (1) knowingly manifest by words or conduct bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, (2) while acting in professional capacity, (3) when such action is prejudicial to the administration of justice, and (4) not legitimate advocacy.
Looking at the first element of 8.4(e), Respondents admit the emails clearly manifested bias and prejudice. On at least eight separate occasions, including on December 21, 2012, March 20, 2013, August 28, 2013, September 11, 2013, September 19, 2013, March 26, 2014, and May 20 and 21, 2014, Respondents engaged in sending and receiving racist emails, including, but not limited to, causal and callous references to the KKK, making light of slavery, and the use of the term “G-Pot” to describe an African American female Chief VLJ. On at least six separate occasions, including on December 21, 2012, August 28, 2013, September 11, 2013, March 26, 2014, May 21, 2014 and August 28, 2014, Respondents engaged in emails that manifested bias based on sex. The terms and comments made or accepted by the Respondents to describe their female co-workers and supervisors were degrading, demeaning and sexist.
this Court notes that Respondent Hancock has no prior disciplinary actions against him, fully cooperated with Bar Counsel and the OIG (Petitioner’s Exhibits No. 12&14) and is person of good character and reputation. Additionally, though he resigned his position at the BVA, this Court accepts that he lost his employment due to his participation and statements made in the emails.
Respondent Markey was found to have refused to acknowledge misconduct.
Bar Counsel recommends a suspension; Respondent Hancock noted no exceptions on the facts and asks for a reprimand.
This should be worth watching going forward as to both the Rule 8.4(e) finding and the appropriate sanction if Markey appeals and contests the conclusions of law.
Even without an appeal, the court may have something significant to say in a relatively unploughed area of professional regulation.
Most cases involve in-person or email abuse directed to a court or opposing counsel.
Also it is worth noting that the case shows the value and efficiency of Maryland's one-tier level of review. Charges filed last June are now ripe for review by the Maryland Court of Appeals.
In D.C. , a case like this - involving an application of a relatively new rule with a dearth of precedent - would take years to get to the Court of Appeals. Mike Frisch)