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Law Digest — Maryland Court of Appeals — July 9, 2020

Maryland Court of Appeals

Criminal Procedure; Interstate compacts: Temporary custody under the Interstate Agreement on Detainers, which provides for the transfer of a prisoner from the jurisdiction of incarceration to the “temporary custody” of the jurisdiction where charges are pending, is for the purpose of resolving those charges, after which the prisoner is returned to the place of incarceration; therefore, where, shortly after commencing an 11-year sentence in Ohio for felony assault, the defendant requested a transfer to Maryland where a murder charge was pending against him, Maryland did not have the requisite jurisdiction over the defendant to commit him to the Maryland Department of Health following a verdict of “not criminally responsible” on the murder charge pursuant to Criminal Procedure Article §3-112, in lieu of returning him to Ohio. Aleman v. State, No. 60, Sept. Term, 2019.

Professional Responsibility; Disbarment: Disbarment was the appropriate sanction for a Maryland attorney who, over the course of a nearly three-year bankruptcy proceeding, filed multiple frivolous pleadings, motions, and appeals, intentionally hindered the court-appointed trustee’s ability to administer the case, and knowingly made false statements of fact in filings and appeals before the state and federal bankruptcy courts and, moreover, in her representation of several clients, misappropriated client funds, made knowing misrepresentations to and intentionally concealed information from clients, and failed to prosecute clients’ motions and appeals, thereby violating the Rules of Professional Conduct regarding competence, scope of representation and allocation of authority, diligence, meritorious claims and contentions, fairness to opposing party and attorney, and truthfulness in statements to others. Attorney Grievance Commission of Maryland v. Smith-Scott, Misc. Docket AG Nos. 8 & 64, Sept. Term, 2018.

Professional Responsibility; Suspension: The Court of Appeals indefinitely suspended from the practice of law in Maryland two lawyers who, for approximately seven years, while working for the federal government, used official government email addresses to participate in an email exchange with a group of fellow employees wherein they made inappropriate and offensive statements about their colleagues that demonstrated bias or prejudice based upon race, sex, national origin, sexual orientation, or socioeconomic status about women and about Hispanic, Asian, African American, and gay men, in violation of the Rules of Professional Conduct regarding conduct prejudicial to the administration of justice, bias or prejudice. Attorney Grievance Commission v. Markey and Hancock, Misc. Docket AG No. 5, Sept. Term, 2019.

Criminal Procedure

Interstate compacts

BOTTOM LINE: Temporary custody under the Interstate Agreement on Detainers, which provides for the transfer of a prisoner from the jurisdiction of incarceration to the “temporary custody” of the jurisdiction where charges are pending, is for the purpose of resolving those charges, after which the prisoner is returned to the place of incarceration; therefore, where, shortly after commencing an 11-year sentence in Ohio for felony assault, the defendant requested a transfer to Maryland where a murder charge was pending against him, Maryland did not have the requisite jurisdiction over the defendant to commit him to the Maryland Department of Health following a verdict of “not criminally responsible” on the murder charge pursuant to Criminal Procedure Article §3-112, in lieu of returning him to Ohio.

CASE: Aleman v. State, No. 60, Sept. Term, 2019 (filed June 30, 2020) (Judges Barbera, MCDONALD, Hotten, Booth & Biran) (Judges Watts & Getty, dissent).

FACTS: The Interstate Agreement on Detainers (“IAD”) is a congressionally-sanctioned compact among the states designed to facilitate the prompt disposition of a detainer lodged by one state against a person incarcerated in another state. In particular, the IAD allows for the temporary transfer of the prisoner from the state of incarceration to the state in which charges are pending, upon the request of either the prisoner or the prosecuting jurisdiction.

On March 17, 2016, Pablo Aleman fatally stabbed Victor Serrano, his former landlord, at Serrano’s home in Baltimore County. On March 18, 2016, an arrest warrant was issued for Aleman based on a statement of charges filed in the district court charging him with first degree murder of Serrano. However, Aleman had fled the state.

Approximately two weeks later, Aleman was in Glendale, Ohio, where he drew a knife and threatened a police officer who came upon him walking along a highway. He was tried in Ohio, where a jury found him guilty of felony assault. The Ohio court sentenced him to 11 years in prison.

Shortly after commencing his 11-year sentence in Ohio, Aleman requested a transfer under the IAD to Maryland where the murder charge was pending against him in the circuit court. After he arrived in Maryland, Aleman pled guilty to second degree murder but, as permitted by Maryland law, requested a jury trial on the issue of criminal responsibility. The jury returned a verdict of “not criminally responsible.”

Such a verdict ordinarily requires that a defendant be committed to the Department of Health for treatment or released. However, the State maintained that, because Maryland had obtained only temporary custody of Aleman from Ohio, the IAD required that he first return to Ohio to finish his sentence. Aleman sought to remain in Maryland, but the circuit court denied his petition for habeas corpus seeking such relief.

Aleman appealed to the Court of Special Appeals. The circuit court stayed his return to Ohio, as well as a commitment to the Department for treatment, pending his appeal. The intermediate appellate court held that, under the IAD, Maryland acquired temporary custody over Aleman only to prosecute the charges on which the detainer was based and therefore lacked custody over Aleman to commit him to the Department of Health before returning him to Ohio under the IAD.

Aleman appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: Aleman argued that the Maryland statute providing for commitment to the Department superseded the State’s obligation under the IAD to return him to Ohio. There was no dispute that, if Aleman had been either acquitted or convicted of the Maryland charges, he would be promptly returned to Ohio under the IAD. At issue was whether a verdict of not criminally responsible required a different result. Aleman contended that the IAD contemplated that Maryland’s “temporary custody” of him pursuant to Articles III and V of the IAD to resolve the charges underlying the detainer against him would also include a commitment to the Department of Health under CP §3-112.

As the Court of Special Appeals observed, Maryland is able to commit a defendant under CP §3-112 only if the State has the requisite jurisdiction over that defendant to do so. Maryland’s custody of Aleman was based on its status as a receiving state under the IAD as a result of his invocation of the IAD. In making a request to resolve an out-of-state detainer, a prisoner is deemed under Article III to waive extradition to the state that placed the detainer and, once the detainer is resolved, to consent to be returned to the place of incarceration. The IAD specifies that a receiving state takes “temporary custody” of the prisoner.

The custody of the prisoner in the receiving state is not only temporary, but is limited in nature. That custody is “only for the purpose of permitting prosecution” of untried charges. Article V(d). For all other purposes, “the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state” – in Aleman’s case, Ohio. Article V(g). Moreover, the receiving state is to return the prisoner to the sending state at “the earliest practicable time consonant with the purposes of” the IAD – i.e., to resolve pending detainers. Article V(e). The plain language of the IAD leaves no doubt that the receiving state has custody of a prisoner only for the purpose of resolving pending charges.

The history and purpose of the IAD confirm what the text plainly says about the nature of a receiving state’s custody of a prisoner. The drafters of the IAD designed the compact according to certain guiding principles. In addition to requiring prompt action by law enforcement and correctional officials to resolve detainers, those principles stressed the temporary nature of the receiving state’s custody of the prisoner. See Council of State Governments Report at 75. From its inception, the IAD was intended to give states with pending charges against prisoners in other states only temporary custody over those prisoners for the limited purpose of resolving the pending charges.

Under Aleman’s proposed interpretation, the IAD would allow commitment to the Department of Health as “intrinsic” to the disposition of the charges against him in Maryland. In his view, Maryland’s temporary custody would extend to his indefinite commitment to a mental health facility under CP §3-112. However, a commitment under CP §3-112 is no more intrinsic to the trial of the charges in the receiving state than other post-trial dispositions.

If the prisoner is acquitted of charges in the receiving state, the prisoner is not released in that state, but rather returned to the sending state to complete the existing sentence there. If the prisoner is convicted and sentenced in the receiving state, that sentence must await completion of the prisoner’s existing sentence in the sending state. See State of N.Y. by Coughlin v. Poe, 835 F. Supp. 585, 590-91 (E.D. Ok. 1993). It follows that, if a prisoner is found guilty but not criminally responsible in the receiving state, any commitment for treatment must likewise await completion of the original sentence in the sending state.

A contrary interpretation would have anomalous results. For example, under Maryland law, a defendant found to be not criminally responsible may be released with conditions if the court determines that he or she is not a danger to self or to the person or property of others. See CP §§3-112(g), 3-114. A person on conditional release is still considered a “committed person.” See CP §3-121. Under Aleman’s view of temporary custody under the IAD, a defendant found not criminally responsible like Aleman could be committed and then released into the community in Maryland on conditions for an indeterminate time without being returned to Ohio to complete his sentence.

Ohio had complete and exclusive custody of Aleman before Aleman invoked the IAD to resolve his Maryland detainer. Under the plain language of the IAD, and consistent with the purpose of the compact as reflected in its legislative history, Maryland obtained temporary custody of Aleman for the sole purpose of resolving the pending murder charge underlying the detainer – in response to his request that it do so. Maryland was obligated to return Aleman to Ohio once that charge was resolved – whatever that resolution happened to be. As such, Maryland did not have the requisite jurisdiction over Aleman to commit him to the Department of Health under CP §3-112 in lieu of returning him to Ohio.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Aleman alternatively argued that, once the jury returned a not criminally responsible verdict, the IAD ceased to apply to him pursuant to Article VI(b). Article VI(b) of the IAD recognizes that it would be futile, or an injustice, to apply the remedies set forth in the IAD in the case of a prisoner who is currently incompetent to stand trial. Relying on Jones v. United States, 463 U.S. 354 (1983), in which the United States Supreme Court held that a statute that required commitment to a mental hospital of a defendant following a verdict of not guilty by reason of insanity did not violate the constitutional guarantees of due process or equal protection. Aleman argued that a not criminally responsible verdict suffices to establish a current mental illness because it creates an inference that a defendant remains mentally ill during and after that prosecution.

This argument was without merit. Article VI(b) is triggered by an adjudication of an actual present mental illness, not an adjudication that at best creates an inference of present mental illness. While this inference, coupled with the determination of dangerousness, might be sufficient to support a commitment of a defendant like Aleman, it did not take him – and every other defendant found not criminally responsible – outside the purview of the IAD. The plain language of Article VI(b), read in context and in light of the IAD’s legislative history, provides that the IAD and its remedies do not apply when a prisoner suffers from a current mental illness that would interfere with the IAD’s purpose of resolving the charges underlying an outstanding detainer. The jury’s verdict that Aleman was not criminally responsible concerned his mental state at the time he committed the murder of Serrano in 2016, and not his mental state several years later when it was time to return him to the sending state under the IAD. Thus, Article VI(b) did not prevent his return to Ohio.

DISSENT: The not criminally responsible verdict necessarily meant that Aleman was a “person who is adjudged to be mentally ill.” CS §8-408(b). As such, the IAD should have been tolled and Aleman committed to an MDH facility for treatment, not returned to Ohio. The judgment of the Court of Special Appeals should have been reversed with a holding that Maryland possessed the requisite jurisdiction to commit Aleman to an MDH facility and that a not criminally responsible verdict necessitates the application of the tolling provision contained in CS §8-408(b).

PRACTICE TIPS: If a defendant enters a plea of not criminally responsible, the State retains the burden of proving, beyond a reasonable doubt, that the defendant committed the criminal act. The defendant bears the burden of proving, by a preponderance of the evidence, that he or she was not criminally responsible at the time of that act. It is not uncommon for the defendant to admit to having committed the criminal act and for the trial to concern solely the issue of criminal responsibility.

Professional Responsibility

Disbarment

BOTTOM LINE: Disbarment was the appropriate sanction for a Maryland attorney who, over the course of a nearly three-year bankruptcy proceeding, filed multiple frivolous pleadings, motions, and appeals, intentionally hindered the court-appointed trustee’s ability to administer the case, and knowingly made false statements of fact in filings and appeals before the state and federal bankruptcy courts and, moreover, in her representation of several clients, misappropriated client funds, made knowing misrepresentations to and intentionally concealed information from clients, and failed to prosecute clients’ motions and appeals, thereby violating the Rules of Professional Conduct regarding competence, scope of representation and allocation of authority, diligence, meritorious claims and contentions, fairness to opposing party and attorney, and truthfulness in statements to others.

CASE: Attorney Grievance Commission of Maryland v. Smith-Scott, Misc. Docket AG Nos. 8 & 64, Sept. Term, 2018 (filed June 29, 2020) (Judges Barbera, McDonald, Watts, Hotten, GETTY, Booth & Biran).

FACTS: On June 27, 2018, the Attorney Grievance Commission of Maryland filed a Petition for Disciplinary or Remedial Action (“Petition I”) with the Court of Appeals alleging that Maryland attorney Arlene Smith-Scott violated the Maryland Lawyers’ Rules of Professional Conduct by her actions during a nearly three-year long personal bankruptcy case. On February 21, 2019, the Commission filed a second Petition for Disciplinary or Remedial Action (“Petition II”) alleging that Smith-Scott had also violated the MLRPC in her unrelated representation of seven clients. Together, Petition I and Petition II alleged that Smith-Scott violated Rules 1.1 (Competence), 1.2 (Scope of Representation and Allocation of Authority), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.6 (Confidentiality of Information), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Attorney), 4.1 (Truthfulness in Statements to Others), 8.1 (Bar Admission and Disciplinary Matters); 8.4 (Misconduct), 19-403 (Duty to Maintain Account), and 19-404 (Trust Account—Required Deposits). The matter was referred to a circuit court judge for a hearing.

In relation to Petition I, Smith-Scott was personally served with process on July 30, 2018 and filed her answer on September 4, 2018. Bar Counsel filed a Motion to Consolidate Petition I and Petition II on February 21, 2019. The two Petitions were consolidated on March 6, 2019, and Petition II was referred to the hearing judge. In relation to Petition II, Smith-Scott was personally served with process on April 1, 2019 and filed her answer on April 24, 2019.

Following a five-day hearing in June 2020, the hearing judge issued findings of fact and conclusions of law. The hearing judge found the Smith-Scott was admitted to the Maryland Bar in February 2012. Since then, she had maintained a law office, Strategic Law Group, LLC, in Prince George’s County, Maryland. Her legal practice focused on representing individuals in Chapter 7 and Chapter 13 bankruptcy proceedings.

Smith-Scott filed a voluntary personal bankruptcy petition under Chapter 11 of Bankruptcy Code in the United States Bankruptcy Court for the District of Maryland on September 28, 2014. The hearing judge found that over the course of the nearly three-year bankruptcy proceeding, Smith-Scott filed multiple frivolous pleadings, motions, and appeals, intentionally hindered the court-appointed trustee’s ability to administer the case, and knowingly made false statements of fact in filings and appeals before the Bankruptcy Court and United States District Court for the District of Maryland.

The hearing judge further found that Smith-Scott had committed misconduct in her unrelated representation of Crystal Combs, Angela Plater, Furrah Deeba, Benjamin Thomas, Jr., John Thomas Jones, Jr., and Theresa Saunders. The hearing judge found that in her representation of these seven clients, Smith-Scott, among other things,  misappropriated client funds, made knowing misrepresentations to and intentionally concealed information from clients, and failed to prosecute clients’ motions and appeals. The hearing judge concluded that Smith-Scott’s conduct violated 16 separate Maryland Attorneys’ Rules of Professional Conduct and warranted disbarment. Smith-Scott noted several exceptions to the hearing judge’s findings of fact and conclusions of law, which the Court of Appeals overruled. Bar Counsel recommend disbarment as the appropriate sanction for Smith-Scott’s misconduct.

The Court of Appeals agreed and entered an order disbarring Smith-Scott.

LAW: Smith-Scott first excepted to the hearing judge’s failure to make the factual findings that Smith-Scott’s filings in her personal bankruptcy case were done in good faith and were not frivolous at the time of filing, and that Smith-Scott performed a significant amount of legal work for Crystal Combs and earned the full amount of legal fees paid by Combs. However, a hearing judge is entitled to a great deal of discretion in determining which evidence to rely upon. Attorney Grievance Comm’n v. Miller, 467 Md. 176, 195 (2020). Indeed, the hearing judge may pick and choose what evidence to believe. Attorney Grievance Comm’n v. Woolery, 462 Md. 209, 230 (2018). Because a hearing judge’s findings of fact should not overruled absent clear error, Smith-Scott’s generalized exceptions were overruled.

Neither was there any basis for sustaining Smith-Scott’s exceptions to the hearing judge’s findings of fact as to Smith-Scott’s representations to Bar Counsel with regard to her personal bankruptcy case and to Combs. Smith-Scott’s exceptions turned largely on Smith-Scott’s intent in making statements to Bar Counsel and Combs. A hearing judge has a great deal of discretion in assessing the credibility of witnesses. Md. Rule 19-741(b)(2)(B). In this case, the hearing judge did not err in finding that Smith-Scott’s statements contained in her response to Bar Counsel and Combs were knowing, intentional, and willful.

Smith-Scott maintained that the hearing judge should not have found that Combs did not authorize payment in the amount of $4,986 on February 23, 2017. Combs testified at the hearing that she spoke to Smith-Scott on February 28, 2017, and informed her that she did not authorize the $4,986 charge. Smith-Scott testified to the contrary. The hearing judge explicitly stated that he credited Combs’s testimony and rejected Smith-Scott’s testimony. Moreover, Smith-Scott’s testimony was contradicted by other testimony, the documentary record, and Smith-Scott’s own statements to Bar Counsel during its investigation. As such, the hearing judge did not clearly err in finding that Combs did not authorize the charge.

Smith-Scott next averred that the hearing judge should not have found that client Angela Plater’s bankruptcy filing was without substantial justification. However, Plater herself testified that she informed Smith-Scott that she had no intention of going through with the bankruptcy. Thus, the hearing judge did not err in determining that Smith-Scott filed a bankruptcy petition on behalf of Plater without substantial justification. Neither did the hearing judge err in finding that Smith-Scott made a knowingly false statement that Plater agreed to pay $4,200 as the total legal fee for bankruptcy representation.

With regard to the hearing judge’s conclusions of law, the hearing judge correctly concluded that Smith-Scott violated Rule 1.1 (Competence) in a variety of ways. Smith-Scott did not except to this conclusion, which was supported by clear and convincing evidence. Clear and convincing evidence likewise supported the hearing judge’s conclusions that Smith-Scott violated Rule 1.2 (Scope of Representation and Allocation of Authority) and Rule 1.3 (Diligence), and Smith-Scott did not except to these conclusions.

The hearing judge correctly concluded that Smith-Scott violated Rule 1.4 (Communication) by failing to provide Combs with timely or accurate billing statements, despite Combs’s repeated requests, and by failing to advise Combs of the status of her proceedings. The hearing judge also correctly concluded that Smith-Scott violated Rule 1.4 in her representation of Plater when she failed to communicate about the status of Plater’s appeal, intentionally concealed the appeal’s dismissal, and intentionally mispresented to Plater that she completed additional legal work on the appeal to justify keeping a portion of the $2,000 in installment payments. In addition, the hearing judge correctly concluded that Smith-Scott violated Rule 1.5 (Fees) when, among other things, she charged Combs’s credit card in the amount of $4,986 without Combs’s authorization.

The hearing judge correctly concluded that Smith-Scott violated Rule 1.6 (Confidentiality) when she intentionally attached, as exhibits, confidential email communications exchanged with Theresa Saunders in a motion filed with the Bankruptcy Court. Smith-Scott neither attempted to obtain Saunders’s permission to disclose these confidential communications nor took any preventative measures to limit the disclosure. Clear and convincing evidence demonstrated that Smith-Scott violated Rule 1.6 during her representation of Saunders.

The hearing judge correctly concluded that Smith-Scott violated Rule 1.15 (Safekeeping Property) and Rule 19-404 (Trust Account—Required Deposits) by failing to deposit and maintain the unearned portion of Combs’s $2,500 payment on October 14, 2015 in an attorney trust account until earned as fees or used for expenses. In addition, clear and convincing evidence demonstrated that Smith-Scott violated Rule 1.15 with respect to Plater. As such, Bar Counsel’s exception to the hearing judge’s failure to find that Smith-Scott violated Rule 1.15 in her representation of Plater was sustained. In addition, clear and convincing evidence supported the hearing judge’s conclusion that Smith-Scott violated Rule 1.16 (Declining or Terminating Representation) by, among other things, failing to refund to Combs the unearned portion of the $4,986 charge on February 23, 2017.

The hearing judge’s conclusion that Smith-Scott violated Rule 3.1 (Meritorious Claims and Contentions) when she filed numerous baseless pleadings, motions and appeals in her personal bankruptcy action was abundantly supported by clear and convincing evidence, and Smith did not except to this conclusion. Similarly, clear and convincing evidence supported the hearing judge’s conclusion that Smith-Scott violated Rule 3.2 (Expediting Litigation) when she failed to file Plater’s appellate brief by the filing deadline or otherwise prosecute Plater’s appeal. Clear and convincing evidence also supported the hearing judge’s conclusion that Smith-Scott violated Rule 3.3 (Candor Toward the Tribunal) when she lied about the fee that Plater had agreed to pay her and when she knowingly made numerous false statements of fact in motions and appeals throughout the course of her personal bankruptcy action.

The hearing judge correctly concluded that Smith-Scott violated Rule 3.4 (Fairness to Opposing Party and Attorney) when Smith-Scott knowingly and intentionally disobeyed several orders of the Bankruptcy Court. The hearing judge correctly concluded that Smith-Scott violated Rule 4.1 (Truthfulness in Statements to Others) when she falsely concealed from her real estate tenants certain court orders so that the tenants would continue to pay rent to her directly. And the hearing judge correctly concluded that Smith-Scott violated Rule 8.1 (Bar Admission and Disciplinary Matters) by her various misrepresentations to Bar Counsel and the Bankruptcy Court. Finally, the hearing judge correctly concluded that Smith-Scott violated Rule 8.4 (Misconduct) by her various other violations of the Rules.

Disbarment was the appropriate sanction for Smith-Scott’s misconduct, and an order disbarring Smith-Scott was accordingly entered.

COMMENTARY: Smith-Scott engaged in intentional dishonest conduct and misappropriated client funds entrusted to her. The magnitude of Smith-Scott’s misconduct was further exacerbated by the fact that she violated 16 different Rules of Professional Conduct, often numerous times and across the representation of multiple clients. Smith-Scott’s conduct in her personal bankruptcy case further compounded the problematic nature of this case. Smith-Scott willfully disregarded lawful orders of the Bankruptcy Court and U.S. District Court and was found in civil contempt by those courts.

Smith-Scott’s misuse of the judicial system and misconduct was of the sort that casts the legal profession in a most unfavorable light. Attorney Grievance Comm’n v. Collins, ___ Md. ___, ___ (2020). A reprimand or suspension would not be sufficient to protect the public or serve as a deterrent to other attorneys. Given Smith-Scott’s wide-ranging misconduct, the existence of aggravating factors, and the limited mitigating factors, disbarment was the appropriate sanction.

Professional Responsibility

Suspension

BOTTOM LINE: The Court of Appeals indefinitely suspended from the practice of law in Maryland two lawyers who, for approximately seven years, while working for the federal government, used official government email addresses to participate in an email exchange with a group of fellow employees wherein they made inappropriate and offensive statements about their colleagues that demonstrated bias or prejudice based upon race, sex, national origin, sexual orientation, or socioeconomic status about women and about Hispanic, Asian, African American, and gay men, in violation of the Rules of Professional Conduct regarding conduct prejudicial to the administration of justice, bias or prejudice.

CASE: Attorney Grievance Commission v. Markey and Hancock, Misc. Docket AG No. 5, Sept. Term, 2019 (filed June 26, 2020) (Judges Barbera, McDonald, WATTS, Hotten, Getty, Booth & Biran).

FACTS: James Markey and Charles Hancock, Respondents, members of the Bar of Maryland, worked as a Veterans Law Judge and an Attorney-Advisor, respectively, at the Board of Veterans’ Appeals, part of the United States Department of Veterans Affairs. For approximately seven years, Markey, Hancock, and three other employees of the Board used their official Department email addresses to participate in an email chain that they called “the Forum of Hate” (“FOH”). They referred to themselves as FOH members.

As members of the FOH, Markey and Hancock sent numerous emails that included statements about their Board colleagues that were highly offensive, and that frequently evinced bias or prejudice based upon race, sex, national origin, sexual orientation, or socioeconomic status. For instance, in one email, in response to a photograph of Hancock’s son’s all-white Little League team, Markey asked where the white sheets were and commented about a “bonfire after victory,” referencing the Ku Klux Klan. In another message, Markey referred to an African American woman Chief Veterans Law Judge as “a total b****.” Among many other examples, Hancock referred to the Chief Veterans Law Judge as a “Ghetto Hippopotamus” and “a despicable impersonation of a human woman, who ought to have her cervix yanked out of her by the Silence of the Lambs guy, and force-fed to her.”

The Veterans Affairs Office of Inspector General discovered the emails and terminated Markey. Hancock voluntarily retired. Eventually, Markey’s and Hancock’s actions came to the attention of the Attorney Grievance Commission of Maryland.

On May 30, 2019, Bar Counsel, on behalf of the Commission, filed a Petition for Disciplinary or Remedial Action against Markey and Hancock, charging them with violating Maryland Lawyers’ Rules of Professional Conduct 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), 8.4(e) (Bias or Prejudice), and 8.4(a) (Violating the MLRPC). The matter was referred to a circuit court judge for a hearing. Following the hearing, the hearing judge issued findings of fact and conclusions of law, concluding that Markey and Hancock had violated MLRPC 8.4(d), 8.4(e), and 8.4(a). None of the parties objected to the hearing judge’s conclusion of law.

Finding that indefinite suspension was the appropriate sanction, the Court of Appeals entered an order indefinitely suspending Markey and Hancock from the practice of law in Maryland.

LAW: Where a lawyer engages in conduct that is related to the practice of law, the lawyer violates MLRPC 8.4(d) if the lawyer’s conduct would negatively impact the perception of the legal profession of a reasonable member of the public. Attorney Grievance Comm’n v. Basinger, 441 Md. 703, 720 (2015). Where a lawyer engages in purely private conduct – i.e., conduct that is entirely unrelated to the practice of law – the lawyer violates MLRPC 8.4(d) “if the lawyer’s conduct is criminal or so egregious as to make the harm, or potential harm, flowing from it patent.” Attorney Grievance Comm’n v. Paul, 459 Md. 526, 547-48 (2018). Here, the hearing judge found that Markey and Hancock made derogatory statements about women and about Hispanic, Asian, African American, and gay men. The hearing judge determined that the emails were related to the practice of law and violated MLRPC 8.4(d).

Conduct that impacts the image or perception of the court or the legal profession or that engenders disrespect for the court and the profession may violate MLRPC 8.4(d). Attorney Grievance Comm’n v. Link, 380 Md. 405, 428-29 1211-12 (2004). The phrase “prejudicial to the administration of justice” has been interpreted to include conduct that a lawyer engages in outside of the legal profession. See id. at 427. However, purely private conduct refers to conduct that is unrelated to the practice of law, e.g., social interactions between a lawyer and a non-lawyer, rather than conduct that is unknown by the public. Id. at 428-29.

Basinger involved a lawyer who wrote disparaging, sexist and profane letters to his sister-in-law, who was his client. The Court of Appeals found that the lawyer’s statements were made at least partially in his capacity as a lawyer because the letters were on his firm’s letterhead, and his purpose in mailing the first letter was to formally acknowledge the termination of his representation. Basinger, 441 Md. at 713. Applying the “reasonable member of the public” test, the Court held that the lawyer violated MLRPC 8.4(d) because his conduct would negatively impact how a reasonable member of the public perceived the legal profession. Id. at 720.

Here, the hearing judge correctly determined, Markey’s and Hancock’s conduct was related to the practice of law. When they made the statements in question, Markey and Hancock were employed, respectively, as Veterans Law Judge and Attorney-Advisor for the Board of Veterans’ Appeals which, by definition, performs legal work. Their positions were law-related and could be performed only by lawyers. Markey and Hancock made their statements using their Department email addresses, and, as the hearing judge observed, mostly during work hours. Moreover, in their statements, Markey and Hancock repeatedly referred to Board colleagues and Board-related matters. Overall, Markey and Hancock made demeaning remarks about their colleagues, who were lawyers, during times when they were supposed to be performing the work of the Board and made the demeaning remarks using resources provided to them by the federal government to do the Board’s legal work. Under these circumstances, it would be difficult, if not impossible, to conclude that the conduct at issue was not related to the practice of law.

Because the actions of Markey and Hancock were related to the practice of law, the “reasonable member of the public” test applied. See Basinger, 441 Md. at 720. The inappropriate and offensive remarks in the email chains would certainly negatively impact the perception of the legal profession of a “reasonable member of the public.” Id. at 720. A reasonable member of the public would not expect a Veterans Law Judge and Attorney-Advisor of the Board to conduct themselves in such an unprofessional manner in the workplace. The hearing judge’s conclusions were more than amply supported by clear and convincing evidence.

Under MLRPC 8.4(e) (Bias or Prejudice), it is professional misconduct for a lawyer to knowingly manifest, by words or conduct, when acting in a professional capacity, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of the Rule. Here, the hearing judge correctly determined that the email comments made by Markey and Hancock clearly constituted examples of knowingly manifesting bias and prejudice based upon race, sex, sexual orientation, national origin, and socioeconomic status, and these comments clearly served no legitimate advocacy. Thus, Markey and Hancock were in clear violation of MLRPC 8.4(e). Therefore, they likewise violated MLRPC 8.4(a) (Violating the MLRPC).

The appropriate sanction for the misconduct at issue was indefinite suspension, and an order suspending Markey and Hancock from the practice of law in Maryland was accordingly entered.

COMMENTARY: In considering the appropriate sanction, the hearing judge found that the aggravating factors of substantial experience in the practice of law and a pattern of misconduct applied to both Markey and Hancock. The hearing judge found that the additional aggravating factor of a refusal to acknowledge the wrongful nature of the misconduct applied to Markey. There existed one additional aggravating factor that applied to both Markey and Hancock: multiple violations of the MLRPC. Mitigating factors for both Markey and Hancock included lack of prior attorney discipline, cooperation with Bar Counsel’s and the Office of Inspector General’s investigations, and the imposition of other sanctions in the form of loss of employment. The additional mitigating factors of remorse and good character and reputation applied to Hancock.

Markey’s and Hancock’s remarks were egregious, were part of an approximately seven-year-long pattern, and were not stray, random, or isolated. Markey, Hancock, and the other participants in the email chain referred to it as “the Forum of Hate,” and referred to themselves as “members” of “the Forum of Hate.” These circumstances established that Markey and Hancock were making remarks that were intentionally offensive. A reprimand or even a short suspension would beg the question of what, if any sanction, would be appropriate for a lawyer who violates MLRPC 8.4(e) by making a stray offensive comment, as opposed to many statements that are deliberate, egregious, and occur over a period of time. Markey’s and Hancock’s violations of MLRPC 8.4(e) were serious and flagrant, and warranted a sanction that made clear to every Maryland lawyer and the public that such conduct is unacceptable. For these reasons, the appropriate sanction for Markey’s and Hancock’s misconduct was indefinite suspension for each from the practice of law in Maryland.

PRACTICE TIPS: Every Maryland attorney takes an oath to “at all times demean myself fairly and honorably as an attorney” and to uphold the State and federal Constitutions. The lawyer’s oath is not a rote formula recited solely to cross the threshold of bar admission, but a pledge for the duration of one’s career. Those lawyers privileged to be in public service have a special obligation to exemplify those principles of fairness, probity, and adherence to constitutional values.

 

 

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