The U.S. Supreme Court concluded its most recent term with a bang. The Court's opinions in Moore v. Harper, 303 Creative, LLC v. Elenis, and Students for Fair Admission, Inc. v. President and Fellows of Harvard College created fireworks.
The court spoke loudly on what constitutes illegal discrimination. None of these cases were ethics cases. And, as usual, the court did not address the ethics issues associated with the cases or provide guidance to lawyers dealing with ethics issues associated with discrimination.
Despite the U.S. Supreme Court's silence, the Maryland Supreme Court has proclaimed its commitment to equal justice. Md. Rule 19-308.4(e) prohibits lawyers from knowingly manifesting, "by words or conduct…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."
Indeed, the Maryland Supreme Court explains that lawyers who violate Subsection (e) lack the character required to serve at the bar. Comment 4 states that, even when the conduct itself may not be unlawful, lawyers who violate section (e) in ways that prejudice the administration of justice commit a particularly egregious type of discrimination.
To violate Rule 19-308.4(e), a lawyer must: (1) when acting in a professional capacity, (2) knowingly manifest by words or conduct bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, (3) when such action is prejudicial to the administration of justice, and (4) not legitimate advocacy.
There are two primary cases interpreting Rule 19-304.8(e): Attorney Grievance Commission of Maryland v. Markey, 469 Md. 485 (2020) and Attorney Grievance Commission v. Vasiliades, 475 Md. 520.
The Markey court indefinitely suspended two attorneys for a seven-year pattern of egregious remarks about minority judges and others on an e-mail chain referred to as "the Forum of Hate." Worse yet, the lawyers called themselves "members" of "the Forum of Hate." The court found that the lawyer's remarks were intentionally offensive. Id. at 516-17.
Similarly, the Vasiliades court disbarred the attorney for a variety of misconduct. Pertaining to Rule 19-308.4(e), the attorney authored, shared, and endorsed biased and prejudicial language in multiple posts on his social media accounts that he used to advertise his legal practice. Id. at 559. Yes, he used THOSE words.
As expected, the hearing judge found his posts were "replete with racial, homophobic, and sexist slurs, frequently demeaning women" and determined the content was prejudicial to the administration of justice, because it reflected poorly on the legal profession in the eyes of a reasonable member of the public. Id. at 545.
With good reason, the Markey and Vasiliades attorneys were charged with professional misconduct. The good news is that these types of cases appear to be outliers. But we must remember that our conduct reflects not just on ourselves but also on the legal system in general.
That's the purpose behind many of the Maryland Rules of Professional Conduct. However, as attorneys, we should not forget that the system works well only when we show the necessary commitment to equal justice under the law.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His column in The Daily Record appears on the first Thursday of every month. He can be reached at csb@gdldlaw.com.
This article originally appeared in The Daily Record on June 5, 2023.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.
