Attorney Civility in the Community
By Brian E. Barkley
Much has been written in recent years about the need for civility in the
practice of law. However, many members of the bar may not be aware of the extent
of the requirements of the Maryland Rules of Professional Conduct (MRPC) with
regard to civility in dealing with not only the courts, other attorneys and
our clients, but also the community-at-large. The Court of Appeals has recently
established new boundaries for such behavior.
In the case of Attorney Grievance Commission of Maryland v. Link,
380 Md. 405 (2004), the respondent was charged with violating MRPC 4.4, Respect
for Rights of Third Persons, and in so doing, acting in a manner prejudicial
to the administration of justice, in violation of MRPC 8.4 (d).
The conduct in which the respondent engaged and the remarks that he made
to a third party, while occurring during the representation of a client and
in the course of obtaining information beneficial to that client, did not occur
in the courthouse or involve court personnel. Neither were the parties to the
litigation or their attorneys involved in the confrontation or the objects
of the respondent's conduct or remarks, and it was not during the actual litigation
process or any one of its stages that the incident at issue took place.
However, the court went on to interpret the phrase "prejudicial to the administration
of justice"
broader than the practice of law, to encompass "conduct the lawyer engages
in outside his or her role as a lawyer." Attorney Grievance Commission v.
Childress, 360 Md.373, 383, 758 A2.d 117, 122 (2000). The court also cited Attorney
Grievance Commission v. Sheinbein, 372 Md.224, 251, 812 A2.d 981, 997 (2002)
where the court found conduct prejudicial to the administration of justice
to be in violation of MRPC 8.4 (d) when there has either been conduct that
is criminal in nature or conduct that relates to the practice of law.
In Link, the respondent went to a Motor Vehicle Administration office
to obtain insurance coverage information in relation to one of his cases. He
engaged in a loud and angry confrontation with a clerk in which he utilized
sarcasm, verbal abuse, offensive and disrespectful language. The court found
that although the respondent's conduct was rude, boorish, insensitive, oppressive
and certainly insulting, it was not even arguably criminal. Although he was
representing a client at the time of the incident, that fact was not readily
apparent or sought to be emphasized. Indeed, the respondent resisted informing
the clerk that he was a lawyer.
Although the court found that the kind of conduct exhibited by the respondent
when directed to a member of the public by a lawyer negatively affects the
perception of lawyers and, in that sense, may breed disrespect for the legal
profession and potentially for the courts, it concluded that it is neither
feasible nor desirable that every social interaction between a lawyer and a
non-lawyer be regulated to ensure the lawyer acts, in each instance, with the
requisite civility and courtesy. The court specifically held that only when
such purely private conduct is criminal or so egregious as to make the harm,
or potential harm, flowing from it patent will that conduct be considered as
prejudicing, or being prejudicial to, the administration of justice. Since
the court found that the conduct in this case, although inappropriate and unfortunate,
was neither criminal nor conduct of the kind that the harm or potential harm
flowing from it was patent, the court could not hold the conduct to be prejudicial
to the administration of justice and, thus, it was not sanctionable.
In a concurring opinion, the Honorable Irma S. Raker, Court of Appeals of
Maryland, agreed that the respondent's conduct would not subject him to discipline
under the Rules of Professional Conduct because Bar Counsel failed to sustain
its burden to prove that respondent used a means in representing a client that
had no substantial purpose other than to embarrass, delay or burden a third
person in violation of MRPC 4.4, because although the respondent was rude,
his purpose was not to embarrass, delay or burden a third person.
Judge Raker disagreed with the majority conclusion that because the respondent
was not dealing with a person concerned with the legal process, the case does
not fall within MRPC 4.4. She disagreed with the majority's determination that
in order to come within the ambit of MRPC 4.4, the complainant must be a party
to the litigation in which the respondent is an attorney, a witness or opposing
counsel. Judge Raker opined that 4.4 is broad enough to the cover the conduct
of a lawyer who, while gathering information in preparation for a trial, interacts
with a State employee and uses means in representing a client which have no
substantial purpose other than to embarrass, delay or burden a third party.
Judge Raker also opined that the standard ". . . so egregious as to make
the harm, or potential harm, flowing from it patent," is ambiguous and illusive.
In Judge Raker's opinion, due process requires more – a lawyer is entitled
to have fair notice of conduct which would subject him or her to discipline
under the Rules of Professional Conduct. Moreover, she would construe MRPC
8.4 (d) to apply to criminal conduct or, when dealing with private conduct,
such conduct that is in some way connected to the practice of law.
Despite Judge Raker's concerns, and despite the fact that Link avoided sanctions,
as a result of Link, lawyers practicing in Maryland should be on notice
that a lack of civility, even if not directly related to the practice of law,
may result in professional discipline.
Brian E. Barkley, an attorney with the firm of Barkley & Kennedy,
Chartered, in Rockville, Maryland, is a member of the Bar Association of
Montgomery County's Ethics Committee.
