Friday, June 26, 2020

"Forum Of Hate" Emails Draw Indefinite Suspensions

The Maryland Court of Appeals has indefinitely suspended two attorneys for their email communications

Court of Appeals indefinitely suspended from practice of law in Maryland two lawyers who, for approximately seven years, while working for federal government, participated in exchange of e-mails among group of employees, who were also lawyers, using official government e-mail addresses during work hours to make disturbingly inappropriate and offensive statements that demonstrated bias or prejudice based upon race, sex, national origin, sexual orientation, or socioeconomic status about Hispanic, Asian, and African American people, and people whom they referred to as gay men, who were their colleagues. Such conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to Administration of Justice), 8.4(e) (Bias or Prejudice), and 8.4(a) (Violating MLRPC).

The respondents

James Andrew Markey and Charles Leonard Hancock, Respondents, members of the Bar of Maryland, worked as a Veterans Law Judge and an Attorney-Advisor, respectively, at the Board of Veterans’ Appeals (“the Board”), which is part of the United States Department of Veterans Affairs (“the Department”). For approximately seven years, Markey, Hancock, and three other employees of the Board used their official Department e-mail addresses to participate in an e-mail chain that they called “the Forum of Hate” (“FOH”). They referred to themselves as FOH members. As members of the FOH, Markey and Hancock sent numerous e-mails that included statements about their Board colleagues that were highly offensive, and that frequently evinced “bias or prejudice based upon race, sex, . . . national origin, . . . sexual orientation[,] or socioeconomic status.” MLRPC 8.4(e)

As examples, in one instance, in response to a photograph of Hancock’s son’s all-white Little League team, Markey asked where the white sheets were and stated “‘[b]onfire’ after every victory[,]” referencing the Ku Klux Klan, and, in another, Markey referred to an African American woman Chief Veterans Law Judge as “a total b[****.]” Among many other examples, Hancock referred to the Chief Veterans Law Judge as a “Ghetto Hippopotamus” and “a despicable impersonation of a human woman, who ought to [have] her cervix yanked out of her by the Silence of the Lamb[s] guy, and force[-]fed to her.” The Veterans Affairs Office of Inspector General discovered the e-mails, the Veterans Administration terminated Markey, and Hancock voluntarily retired. Eventually, Markey’s and Hancock’s actions came to Bar Counsel’s attention.

The emails are set forth at length in the court's opinion. 

The attorneys contended that the private exchanges fell outside the ethics rules

Here, applying the reasonable member of the public test, the hearing judge concluded that “the insulting[,] demeaning language” that Markey and Hancock used in the e-mails would “undoubtedly bring[] the legal profession into disrepute in the eyes of a reasonable member of the public.” We concur with the hearing judge’s determination.

...In sum, the hearing judge rejected the argument that the e-mails were “purely private” and determined that Markey’s and Hancock’s conduct was “related to the practice of law[.]” The hearing judge concluded that Markey’s and Hancock’s conduct would negatively impact the perception of the legal profession of a reasonable member of the public.

The anti-bias rule

Here, the hearing judge determined that, as to Markey and Hancock, Bar Counsel had proven, by clear and convincing evidence, a violation of MLRPC 8.4(e). The hearing judge concluded that Markey’s and Hancock’s many inappropriate and offensive remarks in e-mails clearly constituted examples of knowingly manifesting bias and prejudice based upon race, sex, sexual orientation, national origin, and socioeconomic status. The hearing judge determined that Markey and Hancock were acting in a professional capacity when they made the statements at issue, and, as discussed above, their conduct was related to the practice of law and violated MLRPC 8.4(d), i.e., was prejudicial to the administration of justice. The hearing judge concluded that Markey’s and Hancock’s e-mails clearly served no legitimate advocacy. We agree with all of the above.

Sanction

A reprimand or even a short suspension would beg the question of what, if any sanction, would be appropriate for a lawyer who violates MLRPC 8.4(e) by making a stray offensive comment, as opposed to many statements that are deliberate, egregious, and occur over a period of time. Markey’s and Hancock’s violations of MLRPC 8.4(e) were serious and flagrant, and warrant a sanction that makes clear to every Maryland lawyer and the public that such conduct is unacceptable. We must assure that lawyers do not evince bias or prejudice while acting in their professional capacities and that the principles of fairness and equal justice under the law are foremost in the legal profession.

For the above reasons, we indefinitely suspend Markey and Hancock from the practice of law in Maryland.

Judge Watts authored the opinion.

Judge McDonald concurred

I join the opinion of the Court in this case. I add a few words to emphasize the seriousness of this case in that it involves government attorneys – one an administrative judge. As the Majority Opinion outlines, the conduct involved email communications during the attorneys’ employment over government information systems.

...The conduct here was contrary to the lawyer’s oath and  gave, at the least, the appearance that fairness and decency did not animate those charged with this important public service.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/06/emails-draw-indefinite-suspension.html

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