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.”•


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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?