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DTCI: Be careful what you say: Disciplinary cases hold lessons

January 25, 2017

dtci-freyberger-gregAttorneys in Indiana are governed by the Indiana Rules of Professional Conduct. One of those rules, Rule 8.4(g), provides that it is professional misconduct for a lawyer to “[e]ngage 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.”

The American Bar Association’s Model Rule of Professional Conduct 8.4(g) is similar, but it adds the requirement that the attorney knows or should know his conduct is offensive. The lack of a knowledge requirement in Indiana means that attorneys are left to a strict liability standard for offensive conduct, even if unintentional. When the ABA Standing Committee on Ethics and Professional Responsibility made its working draft amendment to ABA Model Rule 8.4, the drafters noted that Indiana’s rule created a “pure speech code.” That committee discussed Indiana cases where attorneys were sanctioned for conduct that violated Rule 8.4(g).

In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Ind. 2010), an Indiana attorney was disciplined for gratuitously asking if someone was gay. The attorney said she was representing her spouse when she returned the numerous calls of a telemarketer. In the conversation, the respondent asked the telemarketer if he was “gay” or “sweet.” While there was no official representative capacity, the Indiana Supreme Court determined the actions to be sanctionable under Rule 8.4(g), issuing a public reprimand. Respondent was apologetic about her conduct.

In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Ind. 2010), an attorney was suspended for 30 days for using a racially derogatory term about himself in a private communication between him and another attorney’s secretary. In that case, a secretary had demanded (at the direction of her boss) that respondent set up a meeting in a title dispute. The respondent answered the secretary by admonishing her that she could not tell him what to do. During his admonition, he used a racial slur directed toward himself. The court found that his use of the word was not in reference to any historical fact, but rather a manifestation of his prejudice based on race. The respondent was unapologetic about his use of the slur.

Our Supreme Court also heard the case of In the Matter of Joseph B. Barker, 993 N.E.2d 1138 (Ind. 2013). There, the respondent represented a father in a divorce. An issue arose regarding the father’s parenting time of the couple’s child. In response, the respondent drafted and sent a letter to the mother’s attorney and the presiding judge stating that the mother “doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with.” The Supreme Court determined that the respondent violated Rule 8.4(g) because the accusation that the mother was an illegal alien did not advance any legal matter at issue by legitimate advocacy. He was suspended for 30 days for his conduct. Respondent was not apologetic for his conduct.

The Indiana Supreme Court determined Rule 8.4(g) was not offended by a lawyer who romantically pursued a former law clerk and acted scornfully when his advances were rebuked. He “pranked” her by sending an email to several firms with video purportedly showing a nude scene from a movie in which the former clerk acted before her legal career (though a body double was used in the scene). In the case, In the Matter of Arthur J. Usher, IV, 987 N.E.2d 1080 (Ind. 2013), the Indiana Supreme Court found the attorney had violated other sections of Rule 8.4 warranting a three-year suspension without automatic reinstatement, but he did not violate 8.4(g) because his smear campaign was not done in a professional capacity. The justices determined his actions against the former law clerk were personal, rather than professional. The court also determined that he hadn’t violated Rule 8.4(g) because he was acting out against a particular woman rather than women in general. This lawyer showed no remorse for his conduct.

We can learn some important lessons from these cases: Practicing lawyers in Indiana must be careful about the words they use, both in the representation of a client and outside the lines of professional representation. Unlike the ABA Model Rule counterpart, whether you know or should have known the conduct to be discriminatory or harassing does not matter in Indiana.

Oh … and always apologize.•

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Greg Freyberger is a partner in the Evansville office of Wooden McLaughlin and is a member of the DTCI board of directors. The author thanks Ross Rudolph, Magistrate Sheila Corcoran, and Sacha Armstrong for originally presenting this information to the bar association in Evansville. The opinions expressed in this article are those of the author.

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