230 A.3d 942
Md.2020Background
- James A. Markey (Veterans Law Judge) and Charles L. Hancock (Attorney‑Advisor) were members of a multi‑person, work‑time e‑mail chain called the “Forum of Hate” at the Board of Veterans’ Appeals and sent repeatedly racist, sexist, xenophobic, homophobic, and otherwise offensive messages using official VA e‑mail over ~2008–2015.
- The VA Office of Inspector General discovered the e‑mails; Markey was terminated after an MSPB decision, Hancock voluntarily retired and later worked elsewhere; Bar Counsel charged both with violating Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 8.4(d), 8.4(e), and 8.4(a).
- The circuit hearing judge found numerous quoted e‑mail exchanges showing bias and that the conduct was related to the practice of law; findings were not excepted to and were treated as established.
- Respondents argued the exchanges were private, intended as humor within a small group, and not meant for public dissemination; Hancock expressed remorse and offered character evidence; Markey did not fully acknowledge wrongful nature.
- The Court of Appeals affirmed the hearing judge’s conclusions that the respondents violated MLRPC 8.4(d) (prejudicial to administration of justice) and 8.4(e) (manifesting bias) and, as a corollary, 8.4(a).
- Considering aggravating (substantial experience, pattern, multiple violations, Markey’s lack of acknowledgment) and mitigating factors (no prior discipline, cooperation, loss of employment; Hancock’s remorse/character), the Court imposed immediate indefinite suspensions for both attorneys.
Issues
| Issue | Plaintiff's Argument (AGC) | Defendant's Argument (Markey / Hancock) | Held |
|---|---|---|---|
| Whether respondents violated MLRPC 8.4(d) (conduct prejudicial to administration of justice) | E‑mails were work‑related, sent from government accounts during work hours about colleagues and Board matters, so a reasonable member of the public would view the profession negatively. | The messages were private, humorous, confined to a small group and not intended to become public, thus not related to the practice of law. | Court: Violation. Conduct was related to practice of law (government e‑mails during work on legal‑office accounts) and would harm public perception. |
| Whether respondents violated MLRPC 8.4(e) (manifesting bias/prejudice when acting in a professional capacity) | The e‑mails knowingly manifested bias (race, sex, national origin, sexual orientation, socioeconomic status) while acting in professional capacities and prejudiced the administration of justice. | Defendants emphasized context, intent as humor, and (Hancock) claimed remorse and limited culpability for some remarks. | Court: Violation. Clear and convincing evidence respondents knowingly manifested bias in their professional capacity; not legitimate advocacy. |
| Whether respondents violated MLRPC 8.4(a) (violating the RPCs) | Because they violated 8.4(d) and 8.4(e), they necessarily violated 8.4(a). | No separate defense beyond contesting primary violations. | Court: Violation. 8.4(a) violated as derivative of 8.4(d)/(e). |
| Appropriate sanction | AGC: suspension (did not specify definite vs. indefinite). Bar Counsel analogized to prior multi‑incident suspensions and urged a sanction that deters and protects public confidence. | Hancock sought a reprimand; Markey made no recommendation. Mitigating evidence presented for Hancock. | Court: Imposed immediate indefinite suspension for both (aggravating factors and egregious, long‑running pattern outweighed mitigation). |
Key Cases Cited
- Attorney Grievance Comm’n v. Basinger, 441 Md. 703 (2015) (reasonable‑member‑of‑the‑public test; conduct related to practice of law undermines public perception)
- Attorney Grievance Comm’n v. Link, 380 Md. 405 (2004) (distinguishes "purely private" conduct unrelated to law practice)
- Attorney Grievance Comm’n v. Paul, 459 Md. 526 (2018) ("patent harm" test for purely private but egregious conduct)
- Attorney Grievance Comm’n v. Sanderson, 465 Md. 1 (2019) (application of MLRPC 8.4(e): bias manifested in professional context can violate rule)
- Attorney Grievance Comm’n v. Slate, 457 Md. 610 (2018) (sanctioning principles: protection of public confidence, deterrence, and factors to weigh)
- Attorney Grievance Comm’n v. Marcalus, 442 Md. 197 (2015) (prior discipline and repeated misconduct can support disbarment)
- In re Kahn, 16 A.D.3d 7 (N.Y. App. Div. 2005) (pattern of persistent offensive conduct warranted suspension)