The Maryland Court of Appeals disciplined two attorneys for including racist, misogynistic, xenophobic, and homophobic remarks in their workday emails. Attorney Grievance Commission v. Markey (Misc. Docket AG No. 5, Sept. Term 2019) (June 26, 2020). The court accepted the hearing judge’s finding that the remarks, while never intended to be seen by anyone outside the lawyers’ private circle, violated Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 8.4(d) (conduct prejudicial to the administration of justice) and 8.4(e) (bias or prejudice). All that was left for the court was to fashion a sanction “that makes clear to every Maryland lawyer and the public that such conduct is unacceptable.” Slip Op. at 41. To send that message, a unanimous court indefinitely suspended both from the practice of law.
James Markey and Charles Hancock were employed by the U.S. Department of Veterans Affairs as an administrative law judge and attorney-advisor, respectively. In 10 exchanges written over seven years, they used their official email accounts to participate in what they called “the Forum of Hate.” The forum was secretly used to vilify and mock colleagues with veiled references to race, gender, sexual orientation, nationality, and weight.
MLRPC 8.4(d) provides that it is misconduct “to engage in conduct that is prejudicial to the administration of justice.” When the conduct is related to the practice of law, the rule is violated if it would negatively impact the perception of the legal profession in the eyes of a reasonable member of the public. Slip Op. at 16. Here, the remarks were made about colleagues, were written during work hours, and were done on employer-provided email accounts. Even though the comments did not specifically pertain to legal work, the court wrote that on these facts, “it would be difficult, if not impossible, to conclude that the conduct was not related to the practice of law.” Id. at 21. Given the nature of the comments, the court readily concluded that they would negatively impact public perception of the profession: “A reasonable member of the public would not expect [government lawyers] to conduct themselves in such an unprofessional manner in the workplace.” Id. It was, therefore, professional misconduct in violation of MLRPC 8.4(d).
As the court found that these statements related to the practice of law, it did not have to decide whether they would be sanctionable had they been “purely private.” The Court noted, however, that in this context, “private” simply means unrelated to the practice of law, rather than conduct that was not intended to become publicly known. Private conduct can be prejudicial to the administration of justice if it is “criminal or so egregious as to make the harm, or potential harm, flowing from it patent.” Id. at 16 (citations omitted). Whether comments such as those cited in this case would meet this standard if not related to the practice of law remains unclear.
Markey and Hancock were also found to have violated MLRPC 8.4(e), which provides that it is misconduct to “knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status….” For essentially the same reasons that it found multiple violations of Rule 8.4(d), the court readily found that the attorneys violated nearly all of the proscriptions of Rule 8.4(e): the “statements demonstrating bias and prejudice speak for themselves and constitute abhorrent conduct without the need for any evidence that Markey and/or Hancock discriminated against a particular veteran in a case before the [VA].” Slip Op. at 33.
Sounding a warning to the Bar, the court quoted Comment 4 to MLRPC 8.4: misconduct described in section (e) “manifests a lack of character required of the legal profession.” The court’s commitment to this principle is evident from its discussion of the sanction for the pattern presented in this case. Noting that it was “essentially writing on a blank slate, and what we decide in this attorney disciplinary proceeding will become precedent for the sanctions imposed for similar misconduct in the future,” the court left itself room to sanction similar but less persistent or egregious misconduct in the future. Stopping short of disbarment, the court also kept its most powerful weapon in reserve. In either case, the court said what one would hope would already be obvious—expressions of bias and hate by members of the Maryland Bar will not be tolerated.