Offensive language results in disciplinary actions

Complaints based on a misconduct rule regarding how an attorney could offend others through prejudicial words or actions resulted in disciplinary orders in May and December 2010.

Prior to 2010, two orders regarding violations of Rule 8.4g were issued: one in 2005 and another in 2009.

Rule 8.4g states: “It is professional misconduct for a lawyer to engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.”

Charles M. Kidd, staff attorney for the Indiana Supreme Court Disciplinary Commission, has been studying rules in other states similar to Rule 8.4g and frequently mentions it during his ethics continuing legal education sessions. He also plans to devote an entire CLE to the rule at the Indiana State Bar Association’s Solo and Small Firm Conference in June.

Witte

“There has been growing interest about the subject in the last 18 months or so not just because of the decided cases, but in fleshing out the scope of what the rule means. What is the notion of professional capacity? This notion isn’t just two people in a law office talking, but can be applied to a variety of contexts,” he said.

So far, none of the respondents in disciplinary matters involving Rule 8.4g have argued they were not acting in a professional capacity. However, the definition of “in a professional capacity” could be contested down the road, said Kidd and G. Michael Witte, the Disciplinary Commission executive secretary.

The Disciplinary Commission has used its own discretion to decide what does or doesn’t count, but both said a situation could arise where an attorney disagrees.

Witte said questions may also arise and be argued when it comes to an attorney’s use of social media.

“That’s a new territory. I’m sure at some point in my career here I’ll be faced with that particular question. That phrase, ‘in a professional capacity,’ is open to broad interpretation,” he said.

For instance, an attorney who posts a comment on a legal community website about a legal issue could argue that he wasn’t acting in a professional capacity, but that might be open to interpretation.

Past disciplinary orders

Two of the disciplinary actions involving Rule 8.4g involved behavior in a courtroom setting, one of the actions regarded the nature of a phone call, and the latest order regarded comments that an attorney made in an e-mail.

The first order that involved Rule 8.4g, In the Matter of Dorothy J. Thomsen, No. 49S00-0502-DI-36, was made in November 2005. The respondent represented a husband in a divorce case in 2003. The wife in that case had a friend who was an African-American man. During the bench trial, respondent referred to the man by his proper name, but she called him “the black guy” and “the black man.”

Because the man’s race was irrelevant to the case, the disciplinary order said her comments were unnecessary and inappropriate.

“Respondent’s comments do not meet the standards for good manners and common courtesy, much less the professional behavior we expect from those admitted to the bar. Interjecting race into proceedings where it is not relevant is offensive, unprofessional and tarnishes the image of the profession as a whole,” the order stated.

The respondent ultimately received a public reprimand for her misconduct.

In the next disciplinary order applying Rule 8.4g, In the Matter of Vincent M. Campiti, No. 71S00-0807-DI-400, ordered in May 2009, the respondent represented a father at a child support hearing. This order stated that the respondent made inappropriate comments in a public courtroom.

“The respondent … made repeated disparaging references to the fact that the mother was not a U.S. citizen and was receiving legal services at no charge,” the order stated.

However, the order also stated the respondent cooperated with the commission, had no prior disciplinary actions, apologized to the grievant, and “regrets his emotional involvement in the case and has made efforts to change his advocacy style.”

The respondent was also given a public reprimand.

The third disciplinary action regarding Rule 8.4g is In the Matter of Stacy L. Kelley, No. 49S00-0910-DI-438, ordered in May 2010.

The respondent claimed to be her husband’s attorney when she called a telemarketer who had been trying to reach someone else with her husband’s name.

While on the phone with the telemarketer, she asked the representative if he was “gay” or “sweet,” because she thought the male representative had a feminine-sounding voice.

In that case, the respondent ultimately apologized to the representative and showed remorse for her action. She also received a public reprimand.

However, in the fourth and most recent case, In the Matter of Daniel C. McCarthy, No. 41S00-0910-DI-437, the lawyer involved received the harshest punishment so far – suspension from the practice of law in Indiana for 30 days without automatic reinstatement. The suspension begins Jan. 28.

When the respondent’s employer, a title company, was involved in a dispute regarding a cloud on a title of property, the agent representing the seller of that property had his secretary send an e-mail to McCarthy to arrange a meeting of all involved.

McCarthy sent an e-mail response stating, “I know you must do your bosses [sic] bidding at his direction, but I am here to tell you that I am neither you [sic] or his n—–. You do not tell me what to do. You ask. If you ever act like that again, it will be the last time I give any thought to your existence and your boss will have to talk to me. Do we understand each other?”

The Supreme Court order stated, “The hearing officer found that the word n—– is a derogatory racist insult, that Respondent’s use of the term was not simply a historical reference to slavery but rather manifested racial bias, that he was acting as an attorney when he sent the email, and that his use of the term was not connected to legitimate advocacy,” the order stated.

McCarthy also had a previous suspension in 1996, and unlike the others, he “vehemently denies committing any misconduct, has offered no apology or other indication of remorse.”

In this case, all of the justices concurred on the court’s finding of misconduct, but Justice Frank Sullivan Jr. disagreed on the sanction of suspension without automatic reinstatement.

Outcomes of any future scenarios that involve Rule 8.4g will be difficult to predict, Witte said.

“It’s always going to be fact sensitive,” he said. “But the Golden Rule is to be kind and don’t engage in those types of comments. When complaints come to us, those complaints are based on the perception of the person making the complaint, not the perception of the lawyer and how the lawyer would respond to it.”

He added that lawyers should also keep in mind that “the community holds them to a higher standard.” Even if lawyers don’t perceive a situation as being covered by the rules of professional conduct, “that doesn’t prevent the public from filing a complaint against them,” he said.

“I think that there’s room for improvement in the awareness of this rule in the bar at large,” Kidd said. “Attorneys need to be aware of the content and context of what they say.”•

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Cases resulting in orders due to Rule 8.4g

The rule: 8.4g: It is professional misconduct for a lawyer to engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.

Nov. 29, 2005:

Respondent represented a husband in a divorce. She would refer to the other party’s friend by name, but also as the “black guy” or “black man” and commented about his race even though it was not at issue in the case. Public reprimand.

May 7, 2009:

While representing a father at a child support modification hearing, Respondent made repeated disparaging references to the facts that the mother was not a U.S. citizen and was receiving legal services at no charge. These facts were irrelevant to the issues being considered at the hearing. Public reprimand.

May 7, 2010:

Respondent called a telemarketing company that had been calling an unlisted number and asking for someone with the same name as her husband. When she called, she identified her husband as her client when she spoke to a male representative of the company. She asked the representative if he was “gay” or “sweet.” The representative called the comment unprofessional and ended the call abruptly. Public reprimand.

Dec. 21, 2010:

During a dispute regarding a title, the seller’s agent had his secretary contact the respondent, who represented the title company, to set up a meeting. The respondent replied to the secretary’s e-mail:

“I know you must do your bosses [sic] bidding at his direction, but I am here to tell you that I am neither you [sic] or his n—– You do not tell me what to do. You ask. If you ever act like that again, it will be the last time I give any thought to your existence and your boss will have to talk to me. Do we understand each other?” Suspension for 30 days without automatic reinstatement beginning Jan. 28, 2011.