ILNews

Offensive language results in disciplinary actions

Back to TopCommentsE-mailPrintBookmark and Share

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.”•

--------------------

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. My husband left me and the kids for 2 years, i did everything humanly possible to get him back i prayed i even fasted nothing worked out. i was so diver-stated, i was left with nothing no money to pay for kids up keep. my life was tearing apart. i head that he was trying to get married to another lady in Italy, i look for urgent help then i found Dr.Mack in the internet by accident, i was skeptical because i don’t really believe he can bring husband back because its too long we have contacted each other, we only comment on each other status on Facebook and when ever he come online he has never talks anything about coming back to me, i really had to give Dr.Mack a chance to help me out, luckily for me he was God sent and has made everything like a dream to me, Dr.Mack told me that everything will be fine, i called him and he assured me that my Husband will return, i was having so many doubt but now i am happy,i can’t believe it my husband broke up with his Italian lady and he is now back to me and he can’t even stay a minute without me, all he said to me was that he want me back, i am really happy and i cried so much because it was unbelievable, i am really happy and my entire family are happy for me but they never know whats the secret behind this…i want you all divorce lady or single mother, unhappy relationship to please contact this man for help and everything will be fine i really guarantee you….if you want to contact him you can reach him through dr.mac@yahoo. com..,

ADVERTISEMENT