Lawyers are human, and humans invariably make mistakes, especially in the heat of litigation. These mistakes can take many forms, including the use of profanity. A question we have often been asked is, can the use of profanity during the course of litigation give rise to a disciplinary proceeding? Depending on the circumstances, the answer is yes, particularly as to Maryland Rule 19-308.4 (the old Rule 8.4).
Goodell DeVries' professional liability attorneys defend various professionals, including lawyers and law firms, in Maryland, the District of Columbia, and Virginia. Many of these cases are ethics matters involving bar counsel. In litigating and trying cases against bar counsel in Maryland, we have seen claims under Maryland Rule 19-308.4 that center on profane statements made by lawyers. If you are a lawyer who's been accused of improperly using profanity in a case, this brief article provides some insights on what you need to know to defend yourself.
- The use of profanity may give rise to a disciplinary proceeding in light of the broad language in Maryland Rule 19-308.4.
- Not every instance of profanity will be viewed as a potential ethics violation.
- Profanity that is directed at court personnel and clients will generally be viewed more harshly than language exchanged with third parties.
- Profanity that is exchanged inside a court will be viewed more harshly than language exchanged in private communications.
- The number of profane incidents is important as is whether the profanity was uttered in the heat of the moment/litigation as opposed to something that was deliberate and planned.
The Court of Appeals has addressed the use of profanity in a number of cases, including AGC v. Basinger, 441 Md. 703, 109 A.3d 1165 (2015) and AGC v. Alison, 317 Md. 523, 565 A.2d 660 (1989). Basinger involved, among other issues, a lawyer using obscene, sexist language in reference to a client, including the use of the dread "c word." When analyzing the issue of the use of intemperate language, the Court of Appeals noted that "We do not hold that a lawyer violates MLRPC 8.4(d) by slighting a client in any way or by using obscenities at any time." Id. at 715, 109 A.3d at 1172. Indeed, the Court cited a section from Alison which held, "Attorneys are not prohibited from using profane or vulgar language at all times and under all circumstances." Id. (internal citation and quotation marks omitted).
What was important was that the lawyer's unprofessional language "exceeded an appropriate expression of grievances," and therefore "tended to bring the legal profession into disrepute." Id. Of particular significance was that the lawyer's bad language was not "inartful slips of the tongue nor spoken in the heat of an oral altercation," but statements put down in writing, letters that were conceived, signed, and mailed by the lawyer. Id. at 713, 109 A.2d at 1171. In other words, the Court noted that the lawyer, by carefully writing and mailing letters containing profanity "had an opportunity to amend his choice of words at any time before he mailed the letters…." Id. The lawyer's "failure to take advantage of that opportunity establishes that his statements were deliberate, not inadvertent." Id. Moreover, the Court highlighted that the profanity was directed at a client as opposed to a third party and amounted to a pattern of profane insults. Id. at 714, 109 A.2d at 1171. The bottom line is, the Court seems to suggest that there is a material difference between an isolated instance of profanity (or two), particularly if the profanity is directed at a third party (as opposed to a client or the court), and a deliberate, profane course of conduct. The Court ultimately found that the lawyer violated Rule 8.4(d). The lawyer's sanction was a reprimand.
The lawyer's conduct in AGC v. Alison, 317 Md. 523, 565 A.2d 660 (1989) was more egregious than the conduct in Basinger in that it involved a number of bad acts, including five incidents that involved the use of profane or vulgar language. Id. at 533, 565 A.2d at 664. More specifically, the lawyer in Alison was accused of directing his profanity at State troopers, an Assistant State's Attorney, opposing counsel, two District Court clerks, and even a judge in the case. Id. at 533, 565 A.2d at 665. Putting aside the issue of whether such language is protected by the First Amendment (an issue for another post), the Court found it significant that the language at issue occurred inside the courtroom, id. at 538, 565 A.2d at 667, from that which might occur outside or in private for instance. Profane language in a court, directed at court personnel would likely be considered prejudicial to the administration of justice because it would necessarily impact the ability of the personnel to do their jobs. Id. The court ultimately found that the lawyer violated Rules 4.4 and 8.4(d). The lawyer's sanction was a 90-day suspension.
The Bottom Line
While an instance or two of intemperate language spoken privately in the heat of the moment won't likely result in discipline, and in our view, should not result in discipline, lawyers need to understand that words have consequences, especially in the eyes of Bar Counsel. This is particularly true if the language is part of a pattern of conduct or arguably impacts the administration of justice. If you have questions about the above or are a Maryland lawyer facing discipline, please contact the author, George Mahaffey, or any of the ethics counsel at Goodell DeVries.