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Offensive language results in disciplinary actions

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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-michael-mug 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.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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