Matter of a Member of the Bar: Hurley ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
IN THE MATTER OF A MEMBER §
OF TI-IE BAR OF THE SUPREME § No. 383, 2017
COURT OF TI-[E STATE OF §
DELAWARE: § BPR Case Nos. 112751-B
§ and 113087-B
JOSEPH A. HURLEY, §
Respondent. §
Submitted: January 10, 2018
Decided: March 14, 2018
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en banc.
PER CURIAM:
0 R D E R
This 14th day of March 2018, upon consideration of the Report and
Recommendation of the Board on Professional Responsibility (“the Board”)
filed on September 20, 2017,l the Office of Disciplinary Counsel’s (“the
ODC”) objections, and the response and reply thereto, it appears to the Court
that:
(1) The respondent, Joseph A. Hurley, Was admitted to the Delaware
Bar in 1970 and has practiced primarily as a criminal defense lawyer. In
August 2016 and December 2016, the ODC filed two separate petitions for
l A copy of the Board’s Report and Recommendation is attached to this Order as Exhibit
A.
discipline against him. The first petition charged Hurley With one count of
violating Rule 4.4(a)2 of the Delaware Lawyers’ Rules of Professional
Conduct for making antagonistic, inflammatory and demeaning remarks to
and about a former client in three separate letters sent to the ODC and his
former client during the course of`` the ODC’s investigation of`` a disciplinary
complaint that the former client had filed against Hurley. The second petition
charged Hurley With one count of`` violating Rule 4.4(a) and two counts of``
violating Rule 8.4(d)3 f``or making disparaging or demeaning remarks to and
about f``our dif``f``erent Deputy Attorneys General (“DAGS”) in various
correspondence to the DAGS and, in one instance, to the Superior Court during
the course of Hurley’s representation of`` several different clients.
(2) The Board held a consolidated hearing on the two petitions on
March 28, 2017. As to Case No. 112751-B, the record reflects that the ODC
received a complaint about Hurley from his former client in February 2016.
The complaint raised two issues. The ODC Wrote to Hurley and requested
him to respond to the first issue only, Which asserted that Hurley had interfered
With the client’s right to a speedy trial. Hurley responded by sending three
2 Del. LaWyers’ R. Prof``. Cond. Rule 4.4(a) provides that, “ln representing a client, a lawyer
shall not use means that have no substantial purpose other than to embarrass, delay or
burden a third person, or use methods of obtaining evidence that violate the legal rights of
such a person.”
3 Del. Lawyers’ R. Prof. Cond. Rule 8.4(d) provides that, “It is professional misconduct for
a lawyer to. . .engage in conduct that is prejudicial to the administration of justice[.]”
different letters to the ODC, copies of which were sent to his former client.
The letters included material beyond the speedy trial issue and were sarcastic
and insulting.4
(3) ln support of its complaint in Case No. 113087-B, the ODC
presented testimony from multiple DAGs and former DAGs. The testimony
established that, on several past occasions, senior DAGs had contacted Hurley
about his inappropriate and unprofessional correspondence with junior,
female DAGs. In 2007, the then-State Prosecutor Wrote to Hurley and asked
him to stop making personal, sexual or disparaging remarks to other DAGs.
Hurley responded to that letter, sending copies to sixty-seven other DAGs,
accusing the State Prosecutor of censorship Hurley asserted that he had read
the Rules of Professional Conduct and concluded that his brand of humorous
correspondence Was not unethical under the Rules.
(4) Hurley also stated that, although he would maintain a
professional relationship with the complaining DAG, he Would continue to
exercise his “constitutional right of free expression.” Despite his promise to
maintain a professional relationship with the complaining DAG, Hurley later
sent her a copy of a letter in which he stated that he used to expose himself
4 See Board’s Report at 4-6.
“to girls using a popcorn box in a movie theater and while holding it in my
lap and having my thing surrounded by popcorn.”5
(5) The ODC also presented testimony from four other DAGs about
more recent correspondence and interactions with Hurley, which led to the
filing of the ODC’s complaint. In one letter, Hurley suggested that the female
DAG had no “brain wave activity.” The letter included crude musings about
the DAG’s plans for Valentine’s Day with her husband. In another letter,
Hurley stated to a male DAG, “You are outmanned and outgunned. I am
Catholic. You’re not. You’re a young Jewish man, l suspect.” The letter
went on to tell the DAG that he should be “a goat herder in Lebanon.” In
another letter to the same DAG, Hurley called him, “a certified asshole” and
told him that if the DAG got “anybody to accept his [crackpot ideas] as Torah,
then I will abide.”
(6) Another DAG testified about several different emails Hurley had
sent to her that included crude and sexualized comments, including one email
that stated, “You are extraordinarily attractive! I’m sure that you stir the
‘drums of passion’ for all who see you today.” In another email, Hurley called
her “another beautiful, but arrogant female.” A fourth DAG testified about an
email from Hurley that referred to her as “Kurvacious” and “Kooky.” In
5 Board’s Report at 12.
another instance, the DAG testified that Hurley sent an email to a Superior
Court Commissioner, in response to the DAG’s request for a continuance
because of a teaching commitment, stating “beyond [yoga], l cannot fathom
anything where she [the DAG] Would have sufficient expertise to teach.”
(7) After considering the evidence and the parties’ post-hearing
memoranda, the Board unanimously found that the ODC had proven three of
its four counts by clear and convincing evidence. The Board concluded that
Hurley’s letters to and about his former client violated Rule 4.4(a) because the
specific language in the letters demeaned his former client’s mental state and
personality and served “no substantial purpose other than to embarrass, delay
or burden a third person.”6 The Board also concluded that Hurley’s
disparaging and demeaning correspondence to the four DAGs violated Rule
4.4(a). Finally, the Board concluded that Hurley’s disparaging remark about
opposing counsel in his correspondence to the Superior Court Cornrnissioner
was “prejudicial to the administration of justice” in violation of Rule 8.4(d).
(8) On the count that was found lacking, the Board concluded that
Hurley’s demeaning correspondence to the DAGs, which Was only sent to
them and Was not copied to the court, was not “conduct prejudicial to the
administration of justice” in violation of Rule 8.4(d). More particularly, the
6 Del. Lawyers’ R. Prof. Cond. Rule 4.4(a).
Board concluded that the correspondence was private and had no effect on
any case and thus had no “direct impact on the administration of justice”
because it did not burden the court.
(9) ln considering the appropriate sanction, the Board found that
Standards 6.337 (public reprimand) and 7.28 (suspension) of the ABA
Standards for Imposing Lawyer Sanctions were both relevant.9 Ultimately,
the Board rejected the ODC’s argument that Hurley’s misconduct Was
knowing. Instead, the Board found that Hurley had engaged in such ribald
“humor” over the years and “had no conscious awareness that [such] conduct
would violate the Rules.”10 Thus, the Board concluded that Hurley’s state of
mind was merely negligent. After weighing the aggravating and mitigating
factors, the Board accepted the ODC’s recommendation of a public reprimand
With a requirement that Hurley pay for and complete a professionalism
program approved by the ODC.
7 Standard 6.33 states, “Reprimand is generally appropriate When a lawyer is negligent in
determining Whether it is proper to engage in communication with an individual in the legal
system, and causes injury or potential injury to a party or interference or potential
interference with the outcome of the legal proceeding.”
8 Standard 7.2 provides, “Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional and causes injury or
potential injury to a client, the public, or the legal system.”
9 Board’s Report at 29.
10 Board’s Report at 30.
(10) In its objections to the Board’s Report, the ODC contends that
the Board erred in concluding that Hurley’s demeaning correspondence to
opposing counsel, which Was not copied to the court, was not “prejudicial to
the administration of justice” under Rule 8.4(d). The ODC also argues that
the Board erred in finding that Hurley’s state of mind Was merely negligent,
rather than knowing. The ODC does not object to the Board’s recommended
sanction.
(l l) Hurley filed a “response” to the ODC’s objections. In his
response, Hurley claims that he did not read the ODC’s objections. He
purports to offer no substantive response other than to “accept responsibility
as I must.”ll
(12) The ODC filed a reply, contending that Hurley’s acceptance of
responsibility and expressions of remorse are disingenuous, as evidenced by
a 23-page document Written by Hurley, entitled “My Struggle, also known as
“Hurleygate.”12 Hurley apparently sent this document to many members of
the Delaware Bar and Bench in May 2017, after the Board held its hearing in
March but before the Board issued its Report in September. In that document,
Hurley calls the ODC the “Office of Disciplinary Censorship,” refers to the
11 Response to Objections Filed by the Office of Disciplinary Counsel at 5.
12 The ODC attached this document as Exhibit A to its reply memorandum on appeal.
disciplinary proceedings against him as an “attomey court-martial,” and refers
to the allegations of misconduct as “unfair and misdirected.” He compared
the Board’s proceedings to “The Salem Witch (Warlock) Trial,” referred to
his disparaging remarks as “all in fun,” and called the recipients of his
demeaning comments “so-called Victims.” He also suggested that the ODC
has “an enemies list” and acted against him simply because the ODC does not
like him.
(13) The Court has carefully considered the parties’ filings and the
Board’s Report. Although the Court finds the Board’s recommendations
helpf``ul, We are not bound by them.13 Because We have the inherent and
exclusive authority to discipline members of the Delaware Bar,14 We have an
obligation to review the record independently and determine Whether there is
substantial evidence to support the Board’s factual findings.15 The Board’s
conclusions of law are subject to de novo review.16
(14) The ODC’s first objection is that the Board erred in rejecting the
fourth count of its complaint by interpreting “conduct prejudicial to the
administration of justice” under Rule 8.4(d) too narrowly. The Board
13 Id. at 720.
1‘1 In re Nadel, 82 A.3d 716, 719 (Del. 2013).
15 In re Abbon, 925 A.2d 482, 484 (Dei. 2007).
16 ld.
concluded that Hurley’s inappropriate emails to opposing counsel were not
prejudicial to the administration of justice because they were “private” and
did not directly burden the trial court or affect the outcome of pending
litigation
(15) We accept the Board’s conclusion that the communications sent
to opposing counsel did not violate Rule 8.4(d). Without question, the
charged misconduct violated Rule 4.4(a) because the offensive portions of
Hurley’s unprofessional correspondence had “no substantial purpose other
than to embarrass, delay or burden” opposing counsel. As to Rule 8.4(d),
however, We accept the Board’s conclusion, Which was based upon the
testimony of the DAGS, that the evidence did not clearly show that the letters,
as offensive and inappropriate as they were, had an actual impact on the
administration of justice. Our acceptance of the Board’s conclusion on this
point in this case should not be read as the adoption of a rule that such conduct,
which is entirely unacceptable, could never support a Rule 8.4 violation upon
a showing that the conduct affected the performance of opposing counsel or
had some other distinct impact on the judicial process.
(16) The ODC’s second argument is that the Board erred in
concluding that Hurley’s misconduct was not knowing but merely negligent
On this point, we agree With the ODC. “Knowing” misconduct may be
inferred from the circumstances of a given case.17 ln the disciplinary context,
this Court has equated willful ignorance of the law as knowledge.18
(17) The ODC presented evidence that Hurley had been admonished
on earlier occasions by senior DAGs about the inappropriate and offensive
nature of his correspondence to more junior deputies in the office. Hurley,
therefore, Was on notice that his conduct Was deemed offensive, Which
undermines the Board’s finding that Hurley “did not act with a conscious
awareness of the nature of the attendant circumstances”19 and did not know
that his conduct would violate the Rules. Hurley’s excuse that his “arrogant
and overbearing persona was known to all and appreciated by some”z° does
not transform_as Hurley seems to suggest-his patently offensive messages
into acceptable attempts at humor. Simply put, Hurley may not have agreed
that his unprofessional correspondence violated the Rules, but he should have
known that it did. The record presented supports a finding of knowing
misconduct
(18) Even though we disagree with the Board’s finding that Hurley’s
misconduct was merely negligent, We nonetheless accept the Board’s
17 Id.
18 See rn re Marrm, 105 A.3d 967, 975 (Del. 2014); In re Nadel, 82 A.3d 716, 722 (Del.
2013).
19 Board’s Report at 30.
20 ODC’s Reply to Respondent’s Response to Objections Filed by the Office of
Disciplinary Counsel, Ex. A at 12.
lO
recommendation of a public reprimand with conditions in this case. The ODC
argued to the Board that Hurley’s conduct was intentional, but it still
recommended a public reprimand to the Board. The Board, having heard the
testimony of the DAGs regarding the impact of the offensive communications
and considering the course of communications between Hurley and the DAGs
through the years, accepted the ODC’s recommended sanction, and the ODC
did not object to that recommendation in this Court Under the circumstances,
although we would have considered and might have accepted a more severe
sanction had one been recommended, we accept the Board’s recommendation
of a public reprimand with conditions
NOW, TI-[EREFORE, IT lS ORDERED that the Board’s Report and
Recommendation is ACCEPTED IN PART AND REJECTED IN PART. The
Court hereby publicly reprimands Joseph A. Hurley and imposes the
following conditions:
a) Hurley shall, within 6 months of the date of this Order, certify
that he has successfully completed a training program to be
provided by an experienced, qualified Human Resource
professional, chosen by the ODC, on the subjects of
professionalism, respectful treatment of colleagues and opposing
counsel, and the need to refrain generally from inappropriate
discussions of a sexual or religious nature when communicating,
orally or in writing, in the course of practicing law;
b) Hurley shall pay the costs of the training program; and
c) Hurley shall pay the costs associated with the ODC’s
investigation of this matter.
ll
EXHIBIT A
Fi|ing |D 61138554
Case Number 383,2017
BOARD ON PROFESSIONAL RESPONSIBILITY OF THE SUPREME
COUR'I`` OF DELAWARE
Re: Matter of a Member of the
Bar of Supreme Court of . _ :__:.
Delaware : Board Case Nos. 112751:;§_de §
: l 13081_``-_"``_31_'“. _:,_.,'1 _ §§
-``:~"``~< w .':'r\'_/_?
Joseph A. Hurley, E,’P 3 §§
Respondent §§ 1: §
»¢ v ;:1 §
"° ':=:
BOARD REPORT AND RECOMMENDATION
This is the report of`` The Board on Prof``essional Responsibility of the
Supreme Court of the State of Delaware (the “Board”) setting forth its findings and
recommendations in the above captioned matter.
The members of the panel of the Board (the “Panel”) are Deborah L. Miller,
Ph.D., Jessica Zeldin, Esquire and Daniel F. Wolcott, Jr., Esquire (the “Chair ’).
The Office of Disciplinary Counsel (the “ODC”) was represented by Jennif``er-Kate
Aaronson, Esquire and Kathleen M. Vavala, Esquire. The Respondent Joseph A.
Hurley, Esquire appeared Pro Se.
A hearing was held on March 28, 2017. After receiving the transcript, the
parties filed post hearing memorandum ODC filed its opening memorandum on
May 26, 2017, Respondent filed his memorandum on June 30, 2017 and ODC filed
its reply on July 21, 2017.
lMPAC 53952 l8v.l
I. BOARD CASE NO: 1 12751-B
A. Procedural Backgound
The ODC filed a Petition for Discipline on August 11, 2016. In that one
count Petition, the ODC alleged a violation of the Delaware Lawyers’ Rule
of Professional Conduct (the “Rules”) 4.4(a). Rule 4.4(a) provides “[i]n
representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay or burden a third person. . ..” On
August 31, 2016, Respondent filed his answer to the Petition denying that he
violated Rule 4.4(a).
B. Finding§ of Fact
Respondent has been a member of the bar of the Supreme Court of Delaware
since 1970. At all times relevant to the Petition, he was engaged in the private
practice of law, primarily as a criminal defensive lawyer. Petition 1[1. Rock
Peters was arrested for assault third degree and resisting arrest(Transcript 226').
He retained Respondent to defend him. Trial was scheduled several times in the
Court of Common Pleas (Tr. 227). Respondent, as part of his trial strategy,
decided to subpoena the New Castle County Police training manual shortly before
trial so that the defense he planned would not be obvious to the prosecution (Tr.
l Reference is to the Transcript of the hearing before the Panel on March 28, 2017 (hereinaiier,
“Tr. ____”).
2
lMPAC 53952l8v``l
23 0). He therefore wanted to make sure the trial would proceed on the day it was
scheduled. Respondent knew, given how the court schedules matters, that the trial
scheduled f``or December 2015 would not occur. Mr. Peters wanted his trial
promptly and, when the trial was continued from the December 2015 date, called
Respondent in open court profane names (Tr. 229). Respondent determined at that
time he would seek to withdraw as Mr. Peters counsel. He wrote Mr. Peters a
letter explaining his position (Tr. 231). Shortly thereafier, Respondent received a
letter dated February 25, 2016 (Ex. L) z from the ODC enclosing Mr. Peters’
complaint (Tr. 231, 235). The complaint included two items: first, that the
Respondent had denied Mr. Peters his right to a speedy trial and, second, that Mr.
Peters claimed that he had met a former employee of Respondent who had resigned
because Respondent demanded acts of sexual perversion from her (Tr. 231-32).
The letter from ODC asked that Respondent confine his response to just the first
issue. Respondent responded by sending ODC and Mr. Peters letters regarding the
Complaint (Exs. M, N and O) that included material beyond the speedy trial issue.
Respondent explained the response was necessary for several reasons. First,
he wanted to reply to the defamatory remarks and, second, that Respondent
perceived Mr. Peters as a bully, who if unchecked, would assume that silence
indicated acquiescence (Tr. 232). The letters included remarks regarding Mr.
2 Exhibits A-X are documents admitted as Exhibits without objection
3
IMPAC 5395218v.l
Peters’ mental status, conveyed in a sarcastic manner (Tr. 233-34). Portions of the
letters are as follows:
From the letter dated March l, 2016 (Ex M):
Although I am not required, indeed, it is not anticipated that I would
response to your complaint, directly, I follow my policy of making
another person aware when I criticize that person to a third party. . .
I want to congratulate you on authoring the most invective-laden ODC
complaint I have witnessed It is somewhat amazing that because I did
not do what you wanted me to do, even though it couldn’t have
happened had I performed as expected because of circumstances
beyond my control, you have launched an attack while labeling me
unethical, violating the attomey/client relationship (I kind of missed
where I did that), nearly criminal and certainly deserving of disbarment
because I didn’t follow your instructions to say “We demand trial” To
me, it seems kind of harsh to disbar someone for such a trivial matter.
l would ask a favor of you. Whenever you next speak to your therapist
(I assume you have a therapist) ask him whether or not your fusillade
of words launched against me was a result of your perception of my
rejecting you or simply your inability to accept anything but complete
control of everything around you. Perhaps it was combination of both.
I find that interesting
So that you don’t embarrass yourself any more than you already have,
l will tell you in your attempt to discredit me by giving contact
information to a “victim” (?) of my “vile” sexual perversions you might
want to know that the individual to which you refer did not “quit". She
was fired!...
Obviously you have your opinions and I seek not to change them
because you are probably happy in viewing me as despicable as you
can in order to vindicate yourself. I understand that because my
previous potential career was clinical psychology. I simply tell you that
you “shot yourself in the foot”, by referencing that incident, and which,
by the way, had nothing to do with the complaint, did it? Since it
4
lMPAC 5395218\!.|
already had been discredited and your reliance upon that adds to the
discrediting of your complaint
Your best chance of being successful in a criminal court situation was
with me. Maybe you will find out the hard way, I could care less one
way or the other what happens in your case, given this latest salvo, but
I would like you to remember, in the event that you are found guilty,
the words “What have l done?” as you pay the price.
Pinally, and I will bother you no longer, please write down the list of
miscalculations and misjudgments and deficiencies and insufficiencies
that my case preparation contained as indicated by whatever attorney
ultimately represents you. Most certainly, there should be many given
the vibrant complaint you have filed.
...It is not my place to judge you nor, in case you haven’t understood
that, it’s not your place to judge me. You have crossed the boundary
and that is your prerogative as an individual. When you look in the
mirror ask yourself how one who literally “grasped the beads of the
Rosary” embraces the faith seeking the infusion of Godliness, acts in a
manner that you have acted. Just a suggestion, but it certainly won’t
surprise me that you ignore any suggestion (Ex M) In a letter dated
March 7, 2016 and sent to ODC copying Mr. Peters Respondentl make.
From the letter dated March 7, 2016 sent to the ODC and copying Mr. Peters
(Ex. N);
[(When informed of the new trial date)]. . .Peters was directed to sign a
document acknowledging the requirement that he appear at the later
date and.... Outside the presence of, myself``, loud enough for at least
two attomeys, who were situated probably four feet away from the
spectator’s gallery, to hear him utter a rather unpleasant
characterization of me while describing me as a “F“ __ “_ __,ing A _ _ H_
_ _* ”! Both attorneys reported it to me and found the incident
humorous.)
lMl’AC 5395218v.l
From the letter dated March 11, 2016 also sent to ODC with a copy to Mr.
Peters (Ex O):
[T]he System is “rigged” insofar as any person who is represented by
an attorney has full license to bring a complaint against an attorney
however meritless and an investigation results. I would suggest that
American law schools have a course that is designated as “PUNCHING
BAG 101.”
ODC never issues responses to baseless complaints that are critical of
the complainant At best, there is some kind of generic, neutral
verbiage that announces that no action will be taken. Who defends the
attomey? No one! Pity the poor attorney who has the bad luck to
represent 20 “nutballs” and, therefore, has 20 complaints filed against
him or her.
...I cannot tolerate the Rock Peters “of the world who simply “take
shots” knowing there is no “downside” to their baseless complaints
Mr. Peters was adamant regarding having the trial scheduled promptly.
He wasn’t interested in a successful effort as much as he was a prompt
resolution. Well, without seeming particularly strident, he got it! You
will find enclosed an email fi'om the prosecutor [(the email from the
prosecutor advised Peters was convicted of Resisting Arrest)].
Had [Peters] concentrated his effort in cooperating with someone who
knew what he was doing instead of deciding that he was the “boss of
bosses”, success may have occurred.
Although I know that I am subject to criticism for “telling it like it is”,
Mr. Peters got what he deserved and now he has to live with it because
a very profitable civil lawsuit potential has just “gone down the drain.”
I am asking that this document be placed in the tile and with the
understanding that you are under no obligation to accommodate my
wishes.
IMPAC 53952l8v.l
II. BOARD CASE NO. 113087-B
A. Procedural Background
On December 8, 2016, ODC filed its petition alleging in three counts Rule
4.4(a) and 8.4(d) violations based upon the contents of certain communications
from Respondent to various Deputy Attomey Generals (“DAGs”) and, in one
instance, to the Superior Court. Respondent filed his amended answer to the
Petition on December 27, 2016, generally denying that he violated Rule 4.4(a) or
8.4(d). There are four Deputy Attomey Generals involved in this matter. They
have been denominated DAG lF, DAG 2M, DAG 3F and DAG 4F.3
B. Findings of Fact
As mentioned above, Respondent has been a member of the bar of the
Supreme Court of Delaware since 1970. At all times relevant to the Petition, he
was engaged in the private practice of law, primarily as a criminal defense lawyer.
Petition 1]1.
Over the years as a criminal defense counsel, Respondent has on many
occasions, as part of his representation of his clients communicated, with the
Departrnent of Justice (“DOJ”) DAGs prosecuting charges against his clients. In
October 2007, then-State Prosecutor Richard G. Andrews requested that
3 In an effort to maintain confidentiality and with the conctu'rence of ODC and Respondent,
the names of the Deputies are included as an attachment to the letter to William Montgomery
forwarding this Report.
7
IMPAC 5395218$'.1
“Respondent refrain from making personal, lewd, sexual, religious, disparaging
and/or demeaning remarks in correspondence to Deputy Attomey Generals
assigned to criminal cases in which Respondent represented the Defendant.”
(Petition 112). In response, Respondent sent Mr. Andrews a letter dated October 25 ,
2007 objecting to what he termed censorship and indicated that he would continue
exercising his “constitutional right of fi'ee expression no matter who likes it”
(Petition 1]3; Ex. A). Prior to the October 2007 exchange, Mr. Andrews had
communicated with Respondent by telephone with Paul Wallace, who was then
with the DOJ and in charge of New Castle County prosecutors (Tr. 63 ), concerning
a complaint ii‘om a prosecutor about a remark Respondent had made about her
appearance Mr. Andrews left the DOJ for the federal bench in November 2007
(Tr. 58). From October 2007 to his departure from the DOJ, Mr. Andrews does not
remember any other incidents involving Respondent (Tr. 66). Mr. Wallace
recalled no other complaints about Respondent between 2007 and when he left the
DOJ for the Superior Court in 2013 (Tr. 56).
DAG lF
DAG lF became a member of the Bar in 2003, beginning work in private
practice. ln 2005, she became a Deputy Attomey General assigned to the criminal
division in New Castle County. She left in February 2017 (Tr. 92). DAG lF
worked on cases with Respondent throughout her career at the DOJ and believed
8
IM PAC 53952l8v.l
she had a good rapport with him (Tr. 93 -4). While she did not generally socialize
with Respondent, she and her husband attended an event at Respondent’s house
with other prosecutors and judges (Tr. 96). Over the course of years, she engaged
in humorous bantering with Respondent, all a part of the collegiality and gallows
humor of the practice of criminal law (Tr. 96-7; Tr. 42-4 (Testimony of Paul
Wallace)).
DAG lF had been the recipient of some of the communications that
culminated in the exchange between Respondent and Mr. Andrews (Ex. A; Tr. 98-
9).
On February 14, 2012, Respondent wrote to DAG lF regarding a criminal
case in which Respondent represented the defendant (Ex. B). Portions of the text
follows:
CERTIFICATION4
We, anonymous, have successfully backed into the brain of [DAG lF]
and do certify that the enclosure represents the brain wave activity
intercepted on February 14, 2012.
Here it is Valentine Day already. I sure want to make some plans for
that, but I have to analyze this Haughton matter and put it to rest. Joe
Hurley is lecturing me, and I want to shut his mouth for once and for all.
Hmmm! Let me think.
4 Exhibit B, Page 1 includes the word “Certitication” and the first paragraph quoted above,
Following the brain wave activity paragraph, the rest of the page (purporting to be the
intercepted brain waves) is blank. The balance of the quoted language are excerpts ii'om
Exhibit B, pp. 2-4.
9
lMPAC 5395218\'.1
Oh, I remember, Hmmm! This is going to be our first Valentine’s Day
together atier the baby. I wonder if it’ll be the same? Will the same
excitement be there? Will the same anticipated eagerness be there? I
wonder. I know I have seen on many occasions where it “gets old” with
others. I’m not going to let that happened to me, I guess I better stop
by Victoria’s Secret after work and get something to wear for when he
comes home tonight. I want to push up and push in. I’ll find something
That’ll do it. Those 5-inch heels that he loves so much and new lingerie
. . . - oh, back to Haughton.
Joe Hurley says he’s not really involved in drug dealing. Yeah,
where have I heard that before'? Is anyone going to admit it? Well, let
me figure it out on my own. [Nickname for DAG lF] girl you got a
pretty sharp mind, yeah, that’s me “sharp and curvy” so I will put it all
together.
. . . He used his cell phone to make his call to get this stuff``, and he used
his cell phone to communicate with Smith. That’s where the evidence
will be. If he’s been involved in this shit, there are going to be text
messages indicating that, and his cell phone records will lead to contacts
with other people who are on the police intelligence list as drug persons.
That’s where I’ll look. [Nickname for DAG lF], you are one....
Okay, here’s what I’m going to do. He is going to have to plead guilty
to a felony, and he’s going to have to agree to Level 4 followed by Level
3 and he’s going to have to perform 250 hours of community service and
I’m going to require Joe Hurley to draft up an acknowledgement that
Haughton will sign that will indicate that he believes that if he should
ever again be convicted of a drug felony, he should serve the rest of his
life in a penitentiary. I want to make sure that he doesn’t come back here
with something like this again.
....Aah, back to reality =~ I hear him at the door. “Honey, I’m in the
bedroom - WAITING.”
DAG lF was “offended” by the memo and she did not find any portion of it
funny (Tr. 99, 102). She interpreted the blank brain wave portion of the
communication as “Mr. Hurley was calling me an idiot, basically” (Tr. 101). DAG
10
IMPAC 53952|8v.l
lF testified that the other aspects of the communication were “insulting” and
“derogatory” (Tr. 104). Specifically, the sexual topics discussed in the memo were
personal, none of which had been discussed between DAG lF and Respondent.
She testified that she had received other letters from Respondent in the past but
that this one had particularly upset her (Tr. 105).
After a recess at a calendar call in the Courthouse, DAG 1F returned to the
courtroom and walked past Respondent who was sitting at a table who then tapped
his lap and said to DAG lF “here, you can come sit on my lap.” DAG lF told him
to “Knock it off" (Tr. 109). There were other emails and correspondence that are
part of the record (contained within Respondent’s notebook filed with his June 30,
2017 memorandum) in which Respondent would reference purchasing shoes and
other items. DAG lF said those emails did not bother her. (Tr. 110-11).
When asked if she ever requested that she not be assigned to cases in which
Respondent was involved, DAG lF indicated she had not and did not know of
anyone who had. Such an arrangement would have been difficult because
Respondent was in the Courthouse nearly every day and had numerous cases. In
addition, she thought other counsel would think poorly of anyone who requested
such a reassignment (Tr. 114-15).
ll
lMPAC 53952|8v.l
During the hearing and after DAG IF ’s testimony, Respondent indicated he
wanted to change his plea to admit that the February 14, 2012 memo (Ex. B)
violated Rule 4.4(a) (Tr. 112, l 15).
DAG 2M
DAG 2M was employed at the DOJ in 2012 shortly after he passed the
Delaware Bar Exam. He started in the misdemeanor trial unit, proceeded to the
New Castle County Felony Trial Unit and then to the Wilmington Felony Trial
Unit (Tr. 138). His personal interactions with Respondent had always been cordial
but he received correspondence on April 15, 2014 concerning a case from
Respondent, which DAG 2M felt was offensive (Tr. 138-39; Ex. C). A portion of
the email follows:
So, now we’re going to try to persuade with logic? You are outmanned
and outgunned. I am Catholic. You’re not. You’re a young Jewish man
I suspect. You have not studied the teachings of St. Thomas Aquinas.
You probably never even read any of the works of Al Jolson.
St. Thomas Aquinas was able to convince Catholic boys that
masturbating would cause you to have a mortal sin, and you would burn
in hell for etemity. Get that? One act of masturbation equals infinity in
hell. Hey, [DAG 2M``_| and Tom Aquinas have something in common
regarding the concepts of punishment Now let’s see what they don’t
have in common regarding logic. You have a big gaping hole in your
logic(?).
You say that if he had already been convicted of his third and then got
his fourth he would have gotten nine months. True. You miss the point.
If he had gotten his third, and pulled 90 days in prison, there never
would have been a fourth. That is the logic of the illogical proposition
you have put forth.
12
lMPAC 5395218\¢¢1
I’m not going to try to twist your arm because if you can’t see that
losing one’s livelihood to some poor schmuck like John Dillmore is
losing everything, then you ought to be a goat herder in Lebanon. It’s
a pretty big punishment Jack. How about if I get your ass fired by
telling Beau that you’re an insurrectionist, and you can’t get a job.
Asked to delineate those areas he found inappropriate, offensive or insulting, he
noted the comments about his religion, which is Jewish, the reference to
masturbation, and threats to having him fired (Tr. 140-41). With respect to being
fired, DAG 2M was a new Deputy and did not know if Respondent had sufficient
influence to follow through (Tr. 143). DAG 2M sent the email to his supervisor
(Tr. 146).
DAG 2M also testified about another email he received on March 11, 2015
(Ex. D). The email follows:
You are a certified asshole! Fai lure to respond in a contradictory
fashion, within three days, ‘will be taken as your acknowledgement that
you are an asshole’!
I am offering this in the same spirit that you, sort of like a King or
something, simply dictate in your discovery letter that if I don’t ‘jump
through the hoop’ and affirmatively advise you that you screwed up,
then, somehow, I screwed up. It don’t work that way Jack.
Go check Rule 16 and you will see that a defense attomey ‘may’ pose
an objection. Where do you get these crackpot ideas? Why don’t you
go write the [last name ofDAG 2M] Rules and include that one? If you
get anybody to accept them as ‘Torah’, then I will abide.
13
lMPAC 5395218v.l
He objected to the reference to his religion and Respondent calling him an
“asshole” (Tr. 147). The Deputy testified that he was surprised to receive the
email since the language referenced was unprofessional (Tr. 147).
At the conclusion of DAG 2M’s testimony Respondent changed his response
to the Rule 4.4(a) allegation admitting a violation (Tr. 149). He apologized for
making him feel uncomfortable, indicating that it was not intended (Tr. 156).
DAG 3F
DAG 3F was admitted to the Bar of Delaware in 2012 and began work with
the DOJ in 2013 (Tr. 158). She knew Respondent was an excellent lawyer, could
be pretty funny and she thought they had a professional working relationship and
“got along. . .great” (Tr. 159). Respondent sent DAG 3F emails that she thought
were funny and to which she took no offense (Tr. 162). She, however, was
uncomfortable with a reference to her body in an email dated January 8, 2016 to a
male Deputy involving a case with which she was not involved (Ex. E; Tr. 163-
64). A portion of the email follows:
.. . I will tell you, there is a lady with long black hair whose last name
begins with [the first letter DAG 3F’s last name] who has ‘edges’
that you can never duplicate!
On February 29, 2016, she received an email from Respondent concerning a
case they had together (Ex. F). A portion of the email follows:
I have considered what could be if I were 20 years younger and, indeed,
I accept the fact, and a fact it is, with a difficult departure from my
14
lMPAC 5395218v.|
typical modesty and humility, that you would view me as a “hunky” (a
word fi'om the past, no doubt) distinguished “older gentleman” most
worthy of your flirtations. Fate has dealt another hand and, instead, I
can be viewed as a bungling, arrogant dinosaur struggling to exist in a
new culture filled with robots, walking dead and super sensitive people
who want to be called ‘victim’...
The remark that you made, in e-mail of course since we humans
communicate with out fingertips, and an occasional thumb, I imagine,
rather than our tongues, and I wonder what labor our tongues can now
accomplish since their raison e’tre has been removed. [Joe, shut up!].
(Okay, well, okay.)
While Exhibit F is one page there are two additional pages that appear as part of
Exhibit T as “Exhibit A” towards the end of Exhibit T. Exhibit T was a letter to
the General Assembly. While Exhibit A appears in Exhibit T Respondent testified
that it did not go in the letter to the General Assemny (Tr. 297).
DAG 3F testified to the sexual connotations in Exhibit F (as supplemented)
and while she “brushed” it off (Tr. 168) or “breezed over it” (Tr. 170) her reaction
was to think it was outrageous (Tr. 172). She also received an email from
Respondent dated July ll, 2016 (Ex. G) that contained a comment about “drums of
passion," which again she thought was outrageous (Tr. 170-72). A portion of the
email follows:
Let me begin by stating the obvious. You are extraordinarily attractive!
I’m sure that you stir the “drums of passion” for all who see you today.
Finally, DAG 3F received a memo dated July 25, 2016 from Respondent (Ex. H)
that referred to her religion and ethnic background There was a reference to an
15
IMPAC 5395218v l
arrogant Greek female and additional comments on her appearance all of which
made her uncomfortable (Tr. 174). A portion of the email follows:
Probably I’m crazy, (Should I stop here?), but I remember a
conversation that we had with Judge Cooch and during the course of
which you voiced your concem that the dreaded “C” word was
contained in Jerel’s records. l remember something along the lines of
that requiring expert testimony or something like that. If I am correct
(I usually am), then you have forgotten your understanding of the rule
of law (it was wrong), or, alternatively, you’re just another beautifirl,
but arrogant, Greek female, who has one set of rules for her and another
set for the rest of us including, particularly, the Scotch Irish male.
DAG 3F during a trial made a special comment on her trial notes regarding
something Respondent said in Court. The victim was testifying and referred to the
area where DAG 3F was sitting in the Courtroom and Respondent identifying the
location referred to her as “This pretty lady here” (Tr. 177; Ex. U at page 168).
DAG 3F indicated that in general the banter with Respondent was not
offensive but the cumulative effect and the letter to the General Assemny (Ex. T),
in which she felt she was identified, upset her to “[her] core” (Tr. 180).
DAG 4F
DAG 4F began working at the DOJ in 2008. She encountered the
Respondent in that time frame. They had a very good professional relationship and
a certain rapport (Tr. 119). In April 2016, she received a memo from Respondent
in which he referred to her as “KKK” (not her actual initials) translating those
initials to sexual comments about her looks or mental state (Ex. l; Tr. 124). She
16
lMI’AC 53952l8v l
did not appreciate the use of “KKK” for its racist overtones and did not think even
a joke about it was funny (Tr. 125).
In June 2016, DAG 4F was teaching a class at the Police Academy that
conflicted with a motion hearing scheduled in Superior Court. DAG 4F sent an
email to Commissioner Manning, the presiding jurist, explaining the scheduling
issue and explaining that she was teaching a class. Respondent replied in writing
to the Court (Ex 3):
Commission Manning, before 1 take a position with regard to the
request, I am most curious at what class [DAG 4F] is capable of
teaching. l presume it is ‘Yoga’ and, if I am correct, Yoga is important
for health, and I do not object. Beyond that, I cannot fathom anything
where she would have sufficient expertise to teach.
While DAG 4F testified that she might ordinarily think the email was humorous,
she viewed the language as suggesting she was “completely incompetent” and was
concerned because that language was now before the Court and of public record
(Tr. 129-30), Even if Commissioner Manning thought the comment humorous,
there may be others who would see the file and, not knowing DAF 4F, may think
she was incompetent (id. ). It made her feel very uncomfortable (Tr. 130, 133).
III. RULE 4.4(a) Al\_lAYLSIS AS TO BOTH CASES
Rule 4.4(a) provides that “in representing a client, a lawyer shall not use
means that have no substantial purpose other than to embarrass, delay or burden a
person.” With regard to all the communication to the DAGs and the Court, the
l 7
IMPAC 53952|8v.l
Panel finds that ODC has proven by clear and convincing evidence they violated
Rule 4.4(a).
Even when a lawyer’s communications as a whole have a legitimate
substantial purpose, they can still violate Rule 4.4(a) if a part of the communication
lacks a substantial purpose and has the effect of “embarrass[ing], delay[ing] or
burden[ing] a person." Such parsing of communications can be difficult !n Re
Kennedy, 503 A.2d 1198 (Del. 1985) (finding that communications between
brothers violated Rule 4.4(a)).
In reviewing specific language, the Supreme Court has adopted an objective
standard. In Re Kennedy, 503 A.2d at 1202. Courts throughout the country have
also adopted an objective standard. See, e.g., In Re Comjbrt, 344 P.3d 370 (Kan.
2015). Thus, the question is not the intent of the sender, i.e., whether the
communication was meant to be humorous, but rather how an uninvolved
individual would view the language as a whole. In addition, whether the
communication had an effect on the person receiving it by influencing them to take
some action they would not have taken is irrelevant.s
Respondent argues that his First Amendment rights to fi'ee speech limit the
ability of the Court to prohibit certain speech citing Bates v. State Bar ofArizona
5 In determining the appropriate sanction under the disciplinary rules, the fact of an injury is
also not determinative The potential for injury is what is important See in#a.
l 8
IMPAC 53952l8v l
97 S. Ct. 2691 (1977). The Supreme Court of Delaware has recognized that lawyer
conduct may be legitimately subject to ethical consideration when the face of first
Amendment claims. In Re Shearin, 765 A.2d 930, 938 (Del. 2000) (citing
Gentile v. State Bar ofNevada, 501 U.S.1030 (1992)) see also In Re Guy 756 A.2d
875, 878-79 (Del. 2000). The Court said in In Re Shearin:
Based upon the United States Supreme Court’s decision in Gentile, this Court
has held that there are ethical objections imposed upon a Delaware lawyer,
which qualify the lawyer’s constitutional right to freedom of speech.
Accordingly, members of the Delaware Bar are subject to disciplinary
sanctions for speech consisting of intemperate and reckless personal attacks
on the integrity of judicial ofticers.
265 A.2d at 938. The Panel finds these principles apply equally to violations of
Rule 4.4(a) as they do to attacks on judicial officers.
There is precedent fi'om outside of Delaware for finding Rule 4.4(a)
violations based on a lawyer’s sexually demeaning and racist comments. See, e.g,
Cruz-Aponte v. Caribbean Petroleum Corp., 123 F. Supp. 3d 276 (D.P.R. 2015)
(attomey’s sexist remark to female opposing counsel during deposition that
“You’re not getting menopause, I hope” violated Rule 4.4(a)); see also Matter of
Schz'/f 190 A.D.2d. 293 (N.Y. App. Div. 1993) (attomey’s vulgar, obscene and
sexist epithets toward female opposing counsel’s anatomy and gender were
inexcusable, intolerable and violated DR 1-102(A)(7) because they reflected
adversely on attomey’s fitness to practice law); Mullcmey v. Aude, 730 A.2d 759
(Md. Ct. Spec. App. 1999) (male attorney sanctioned for sexist remark to female
19
IMPAC 5395218v.1
deponent and addressing female attorney as “babe,” during deposition); Principe v.
Assay Partners, 586 N.Y.S.2d 182, 184-88, 191 (N.Y. 1992) (male attorney
sanctioned for calling female attorney “little lady,” “little mouse,” and “little girl”
repeatedly during deposition).
Similarly, the communications at issue rise to the objective level of
embarrassing and burdening. The sexual nature of the language used with
DAG IF, DAG 3F and DAG 4F - all females much younger and less experienced
than Respondent - was objectifying, degrading and demeaning. F or example,
suggesting in a professional writing between opposing counsel that DAG 1F’s
claimed near non-existent “brain wave” activity should be focused on “push[ing]
up and push[ing] in” her “curves” for the excitement of the opposite sex, should
reasonably be seen as denigrating her professional competence Likewise,
Respondent’s remark to DAG 3F that she “stirs the ‘drums of passion’” is
objectifying. Blatantly propositioning her by suggesting consideration of what
their “tongues can now accomplish” is beyond burdensome; it is harassing to any
reasonable mind. Likewise, asserting to the Court that DAG 4F is not qualified to
teach anything but yoga - an endeavor typically associated with female flexibility
like other more salacious activities and involving little intellectual skills - is sexist
and undermines her professional competence It is objectively degrading. The
20
IMPAC 5395218v.l
email to DAG 2M was not sexual in nature, but reasonable minds would have
found it insulting and offensive.6
Respondent argues that he is being prosecuted based on the ODC’s
subjective view as to what is proper."' Respondent also argues that his purpose in
making the remarks was to foster his clients’ interests. But the existence of some
legitimate purpose does not negate the applicability of Rule 4.4(a). The ODC cites
cases in which a legitimate purpose was insufficient because the means used
violated Rule 4.4(a). F or instance In re Moore, 2016 WL 5886126 (Ill. Atty. Reg.
Disp. Com. Sept. 9, 2016), an attorney violated Rule 4.4(a) by using derogatory,
threatening and racially offensive language in telephone calls to his criminal
client’s father regarding payment of his fee. The Hearing Board rejected Moore’s
defense that he had a legitimate purpose for the calls (requesting an additional fee)
and that the father had been disrespectful to him. Id. at 7-8 (citing In re Gerstein,
99 SH l, M.R. 18377 (Nov. 26, 2002) (derogatory and insulting language in
correspondence to opposing counsel); In re Hoj``man, 08 SH 65, M.R. 24030 (Sept.
6 Respondent has admitted to a Rule 4.4(a) violation as to DAG lF and DAG 2M
communications
Respondent also argues that there is no professional violation because the female DAGs said
that they just brushed off the communications and went on with their work. This is factually
incorrect and, even if true, legally irrelevant in light of the objective standard for liability.
See, e.g. Tr. 99-100, 114 (indicating that DAG lF was “offended” and kept the letter in her
tile but did not report it or address it with Mr. Hurley because it would not have made a
difference and she predicted such complaints would be perceived as a weakness in an
environment where prevailing attitudes were that “prosecutors should be able to handle”
what comes at them).
21
lMPAC 5395218v l
22, 2010) (statements to another attorney about his religion); In re Muller, 04 CH
139, M.R. 21027 (Sept. 21, 2006) (leaving hostile telephone messages for
attorney); In re Novaselsky, 2011PR00043, M.R. 27419 (Sept. 21, 2015)
(derogatory, sexist, vulgar remarks to two opposing counsel)). “Simply because
the letters contain some legitimate purpose does not negate the application of Rule
4.4. It is the Respondent’s use of offensive, vulgar, and derogatory language that
constitutes a violation of Rule 4.4, because the use of that language has no
substantial purpose other than to embarrass or burden the recipient.” Id. at 8-9
(citation omitted).
In In re Comfort, 284 Kan. 183 (Kan. 2007), an attorney violated Rule 4.4(a)
when he derided opposing counsel professionally and personally in a letter he
published to various members of the community. Comfort argued his substantial
purpose was to get opposing counsel’s attention. Id. at 194. Comfort’s effort to
shift the court’s focus from his objective in adopting and pursing a particular
method - to his ultimate legal objective - did not insulate him from the Court’s
conclusion he violated Rule 4.4(a). Id. at 94. Acknowledging Comfort and his
client had legitimate objectives, the Court nonetheless concluded the means
Comfort used to accomplish those objectives served no substantial purpose other
than to embarrass opposing counsel. Id. at 194.
22
lMl’AC 53952l8v l
In Florz‘da Bar v. Buclcle, 771 So, 2d 1131 (Fl. 2000), a criminal defense
attorney violated Rule 4.4(a) by contacting the victim twice by telephone and once
by a letter, with various religious materials. Id. at 1133. The Court rejected
Buckle’s argument that his letter had “a” substantial purpose:
The heart of this matter revolves around the lines of propriety
involved in the conflict between zealous advocacy and ethical
conduct We must never permit a cloak of purported zealous advocacy
to conceal unethical behavior.
Certainly, the principles underlying the rules include basic faimess,
respect for others, human dignity, and upholding the quality of justice.
Zealous advocacy cannot be translated to mean win at all costs, and
although the line may be difficult to establish, standards of good taste
and professionalism must be maintained while we support and defend
the role of counsel in proper advocacy. In corresponding with persons
involved in legal proceedings, lawyers must be vigilant not to abuse
the privilege afforded them as officers of the court. A lawyer’s
obligation of zealous representation should not and cannot be
transformed into a vehicle intent upon harassment and intimidation.
. . .[B]uckle was certainly entitled and obligated to raise issues
regarding [the victim’s] credibility and to attempt to discover the facts
and circumstances surrounding the alleged crime; however, he was
not entitled to use such inquiries as a ruse for threatening, di sparaging,
and humiliating [the victim] into abandoning her complaint
Id. at 1134 (emphasis added); see also In re Davidson, 99 So. 3d 18 (La. 2012)
(defense attomey’s statement to a police witness prior to testimony “[H]ave you
ever been raped?...well get ready because today will be your first time” violated
Rule 4.4(a)); In re Mertz, 712 N.W.2d 849 (N.D. 2006) (the existence of a
23
lMPAC 53952|8v.l
legitimate purpose for a attomey’s communication does not shield each and every
insulting, degrading, embarrassing remark contained within a communication); In
re Dvorak, 611 N.W.Zd 147 (N.D. 2000) (attomey’s letter to witness’s employer
seeking preservation of documents served legitimate purpose, but telling employer
that witness admitted testifying falsely was “independent act” violating Rule 4.4);
In re No)_'fleet, 595 S.E.2d 243 (S.C. 2004) (although attorney was trying to obtain
student’s file for permissible use in divorce litigation, “fi.\rious” outbursts at school
principal violated Rule 4.4).8
Following these authorities, Respondent’s claimed purpose in writing the
emails to the DAGs was to communicate with them concerning his clients and to
do it in a way which he believed was humorous or witty is of no avail. There is no
objective substantial purpose for sexually harassing opposing counsel. It is
impossible to fathom a scenario in the practice of law in Delaware in which
opposing counsels’ lingerie and sexual relationships with her husband are relevant
to the interests of clients. Advising opposing counsel she is sexually arousing is
not a rational, legitimate means to fostering a client’s interests. Likewise, religious
slurs cannot reasonably be accepted as the “rneans” to serve the interests of one’s
clients.
a The Respondent’s comments to the DAGs are different than most of the cited cases in the
sense that, except for the emails to DAG 2M, they were not threatening
24
lMPAC 53952l8v l
The Supreme Court of Delaware found a violation of Rule 3.5(d), which
concerns decorum when addressing the Court, when the lawyer filed briefs
characterizing the opponent’s case in insulting and vituperative language In Re
Abbott, 925 A.2d 482 (Del. 2007). Rule 3.5(d) does not contain the limitation of
“no substantial purpose” but the Abbott case is instructive. While the purpose was
to argue the case and that argument was in the briefs, the offending language used
had no substantial purpose and violated Rule 3.5.
Moreover and as noted above, there is no requirement in Rule 4.4(a) that the
communications have a deleterious effect on the recipientjust that it objectively
embarrass, delay or burden. Each of the emails at issue to the DAGs met that
standard.
The emails relied upon by the ODC are different than many of the emails
submitted by Respondent as “Hurleygrams.” Those Hurleygrams are not sexually
demeaning in nature and are not by and large religious: They are the type of banter
one might expect among colleagues in a practice in which lawyers have constant
contact with each other over cases which concern victims, defendants and the
public in general.
With regard to Rock Peters, the Panel finds that the portion of the letters
addressed to his mental state and general personality had no substantial purpose
related to the reason Respondent was asked to respond to Peters complaint
25
IMPAC 53952|8v l
At the time Respondent wrote the letters he was representing himself. As
such, he was subject to Rule 4.4 in dealing with others, See, e.g., In re Kennedy,
503 A.2d at 1202 (predecessor to Rule 4.4(a)); Attomey Grievance Comm ’n v.
Allison, 317 Md. 523, 539 (Md. Ct. App. 1989) (“[t]he intent and purpose of Rule
4.4 is served only by the construction that a lawyer is representing a client when he
represents himself, and we adopt that common sense construction”). Respondent
asserts that because Peters defamed him and accused him of sexual perversion that
he needed to vigorously defend himself in the strongest words. While the
communication arguably had a substantial overall purpose, the Panel finds that the
specific language used had no substantial purpose and violated Rule 4.4(a). Mr.
Peters did not testify at the hearing and the reason he did not appear was not
explained.
IV. RULE 8.4(d) ANALSYSIS AS TO BOARD CASE NO. 113087-B
Rule 8.4(d) states “[i]t is professional misconduct for a lawyer to engage in
conduct prejudicial to the administration of justice.” The comments to the Rule
specifically reference racially and sexual motivated behavior that have an effect on
the administration of justice:
[3] A lawyer who, in the course of representing a client, knowingly
manifests by words by words or conduct, bias or prejudice based upon
race, sex, religion, national original, disability, age, sexual orientation
or socioeconomic status, violates paragraph (d) when such actions are
prejudicial to the administration of justice. Legitimate advocacy
respecting the foregoing factors does not violate paragraph (d). A trial
26
lMPAC 539SZle.l
judge’s finding that peremptory challenges were exercised on a
discriminatory basis does not alone establish a violation of this rule.
Rule 8.4(d), Cmt. [3]
None of the communications at issue are, or claimed to be, part of any
genuine legitimate advocacy within the scope of the comment above
The precedent regarding the parameters of Rule 8.4(d), however, focus on
violations involving some burden imposed upon the Court or the formal judicial
process. In In re Abbott, 925 A.2d 428 (Del. 2007), the Court found language in
opening and reply briefs violated Rule 3.5(d) (conduct which is undignified or
discourteous to the Court) and 8.4(d). Because the Supreme Court found that the
Superior Court was burdened by the pleadings, the filings violated Rule 8.4(d).9
The emails to DAG lF, DAG 2M and DAG 3F were private and to the
recipient alonelo The emails would have been retained in the DOJ electronic files
for each case None of the DAGs who testified indicated that any of the cases were
l0
Other cases involving Rule 8.4(d) are ]n Re Mar!in 105 A.3d 967 (Del. 2014) (finding a
violation of Rule 8.4(d) by attorney who violated a Supreme Court Order and assisting
another lawyer who was suspended to engage in the unauthorized practice of law), In Re Tos,
576 A.2d 607 (Del. 1990) (knowing violations of court obligations violate Rule 8.4(d)) and
In Re Shearin 765 A.2d 930 (Del. 2000) (filing of patently frivolous litigation was a violation
ofRule 8.4(d)).
While the ODC cites some authority for the proposition that vitriolic, private
communications could be prejudicial to the administration of justice, those cases involve the
attorney using such means to gain strategic advantage See, e.g., In re Whi!e, 707 S.E.2d 211
(S.C.), reinstatement granted, 707 S.E.2d 436, (S.C. 2011). The ODC posits that
Respondent’s statements were “calculated litigation tactics” designed to produce plea offers
(OB at 35). There is no clear and convincing evidence to support this claim as to the
statements at issue (see, e.g., Tr. 107 (indicating that the Valentine’s Memo did not affect the
resolution of the Houghton matter)).
27
lMI'AC 53952|8v.l
affected by the emails. Because of the private nature of the communication and
lack of any direct impact on the administration of justice, the Panel finds the
communications to DAG lF, DAG 2M and DAG 3F do not violate Rule 8.4(d).
With respect to the email (Ex. J), which was sent to the Superior Court and
DAG 4F, the Panel finds that it violated Rule 8.4(d). It is a matter of public record
and while there was no testimony that it disrupted the Court, it was imposed upon
the Court.
V. THE PRESUMPTIVE SANCTION
Attomey discipline is not intended to be punitive In re Koyste, 111 A.3d 581
(Del. 2015). Rather, the objectives of the Lawyer Disciplinary System are to protect
the public, to protect the administration ofjustice, to preserve confidence in the legal
profession, and to deter other lawyers from similar conduct In re Fountain, 878 A.2d
1167, 1173 (Del. 2005). To “further these objectives and ‘to promote consistency and
predictability in the imposition of disciplinary sanctions,”’ the Supreme Court looks
for guidance to the ABA Standards for Imposing Lawyer Sanctions (“ABA
Standards”). See id. (citation omitted).
A. ABA Standards
The Court is generally guided by the ABA Standards and relevant Delaware
precedent when making an initial determination of an appropriate or presumptive
sanction after finding attorney misconduct The ABA Standards set out a four-
28
lMPAC 53952|8v 1
factor test: (1) the ethical duty violated; (2) the lawyer’s mental state; (3) the
extent of the actual or potential injury caused by the lawyer’s misconduct; and (4)
aggravating and mitigating factors. The first three factors lead to a preliminary
determination of the appropriate sanction. The fourth factor - relevant
aggravating and mitigating circumstances - may be considered in determining
whether an increase or decrease in the presumptive sanction is warranted. ABA
Standard 3.0.
l. Duties Owed to the Legal System and the Legal Profession
Violations of Rules 4.4(a) and 8.4(d) involve breaches of duties owed to the
legal system and the legal profession. The ABA Standards that appear to most clearly
address the conduct for a violation of Rule 4.4(a) is ABA Standard 6.33. The ODC
relies on ABA Standard 7.2. Both are relevant ABA Standard 7.2 addresses
breaches of a legal duty owed to the profession and “conduct that is a violation of a
duty owed as a professional, and causes injury or potential injury to the public, or
the legal system.”
The Delaware Supreme Court “takes very seriously a lawyer’s fundamental
duty to foster public confidence in our Bar and to maintain the integrity of the legal
profession.” In re Howard, 765 A.2d 39, 46 (Del. 2000). When attorneys engage in
harassing and discriminatory behavior “they do not merely reflect on their own lack
of professionalism but they disgrace the entire legal profession and the system of
29
lMPAC 53952|8v.l
justice that provides a stage for such oppressive actors.” Mullaney, 126 Md. App.
at 654; see also Assay, 586 N.Y. S.2d at 185 (“discriminatory conduct on the part of
an attorney is inherently adverse to the goals of justice and the legal profession”)
Respondent admitted his conduct with respect to DAG lF and DAG 2M violated
Rule 4.4(a) and the Panel finds by clear and convincing evidence that Respondent’s
communications to Mr. Peters and the DAGs, collectively violated Rule 4.4(a). It
further finds that the communication to the Superior Court and DAG 4F also
violated Rule 8.4(d).
2. Respondent Acted Negligently
The Panel finds that with respect to his communications to Peters and to the
DAGs, Respondent acted negligently. While he knew what he was writing, he did
not act with a conscious awareness of the nature of the attendant circumstances
Respondent has engaged in ribald and other topics of humor over the years. He
had no conscious awareness that the conduct would violate the Rules. Although
Respondent admitted a violation of Rule 4.4(a) with respect to two DAGs, those
admissions came about because of his realization that the recipient was upset and
offended by the communication
3. M
In determining an appropriate sanction the Court looks at whether
Respondent’s conduct caused injury. The injury may be actual or simply potential.
30
IMPAC 5395218v.l
Here, the Deputies were actually harmed in the sense that they were upset by the
communications While no Deputy testified that there was an actual effect on a
particular case, the impact of the communications sent had the potential for an
injurious impact
There was no testimony as to the actual impact on Mr. Peters of the
communications But actual injury is not required. The correspondence may have
the potential to persuade improperly Mr. Peters not to proceed with the complaint
which for injury is sufficient
4. Aggr_avating and Mitigating Factors
a. Aggr_a_vating F actors ABA Standards 9.22
The ODC argued 5 aggravating factors:
1. Previous sanction. In 1990 Respondent was sanctioned by the
Supreme Court for Respondent’s perceived disrespect for the Court
when he filed an additional pleading on behalf of a client after he had
been directed by the Court not to file any additional pleadings In Re
Hurley, 583 A.2d 660 (Del. 1990). Also, on July 10, 2013,
Respondent consented to the imposition of private probation for a
violation of Rules l.lS(a) and l.lS(f). ODC said that the violation
regarding DAG 2M occurred during the period of probation. The
length or terms of the probation were not specified. The Panel notes
31
lMPAC 5395218v.1
lMPAC 5395218v l
that the first sanction was 15 years ago and that the second was of a
completely different nature than the current case.
. Pattem of misconduct ODC argues that the allegations with respect
to Mr. Peters and DAG 2M (which involves insulting language) are a
pattern since they involve the same sort of conduct Likewise, ODC
asserts that the sexual references in multiple emails constitute a
pattem.
Multiple Of``fenses. ODC argues that all of the communications to Mr.
Peters and the DAGs together constitute multiple offenses. The Panel
in considering the penalty recommendation took into account the
number of communications as well as past warnings of the DOJ to
Respondent about his communications certain DAGs.
. Substantial experience in the practice of |aw. The Respondent has
substantial experience as he was admitted to the practice of law in
1970.
b. Mitigating F actors ABA Standard 9.32
The following mitigating factors were presented:
. Absent of a dishonest or selfish motive There was no dishonest or
selfish motive with respect to the communication with the DAGs.
Respondent believed he was representing his clients.
32
2. Cooperation with ODC. By all accounts Respondent cooperated fully
with the investigation and subsequent hearing.
3. Remorse. While Respondent was remorseful that he had hurt a
DAG’s feelings or embarrassed them, with respect to Mr. Peters,
Respondent believed his letters were fullyjustified.
4. Character or Reputation. A number of prominent attorneys provided
letters to the Panel testify to Respondent’s good character, integrity
and service of profession None of the letters made reference to the
individual communications at issue
VI. RECOMMENDED I’ENALTY
ODC recommended that Respondent be publically reprimanded. While
ODC acknowledged that a more severe penalty was possible, it made no such
recommendation or argument Respondent, other than presenting certain
mitigating factors, made no particular suggestion with respect to a penalty, leaving
it to the Panel.
The Panel finds the language used in the communications at issue to be
degrading and demeaning to the recipients based on their gender, religion and
national origin, and objectively to have the purpose of embarrassing or burdening.
Such language has no part in the practice of law even in private communications
among lawyers. Although the Respondent has a history of sending so called
33
lMPAC 5395218v.l
“Hurleygrams," which many recipients found humorous and in fact looked forward
to receiving, the communications presented to the Panel by ODC crossed the line
and violated Rule 4.4(a). A public reprimand as opposed to a private reprimand
has a greater likelihood of curtailing Respondent’s future conduct Further, a
public reprimand insures that fixture recipients of similar remarks, whether from
Respondent or others, will be aware that they can and should speak out
In addition to a public reprimand, the Panel recommends that, within 6
months, Respondent certify to ODC that he has successfully completed a training
program to be provided by an experienced Human Resources professional on the
subjects of professionalism, respectful treatment of colleagues and opposing
counsel, and the need to refrain generally fi'om discussions of a sexual or religious
nature when communicating, verbally or in writing, in the course of practicing law.
The Panel also recommends that Respondent bear the cost of such training, which
shall be provided by a qualified professional chosen by ODC. It is also
recommended that Respondent pay the costs associated with the investigation of
this matter by ODC.
34
lMl’AC 5395218'/1|
M?»MW<\ ,
barrier F. Wol¢ou, Jr., aij
Chair
Deborah L. Miller, Ph.D.
Jessica Zeldin, Esquire
Dared: §§ ala v lol[, LO 17
lMPAC 538934|v.l
Daniel F. Wolcott, Jr., Esquire
Chair
M
Deborah L.'Miuer', Ph.D.
Jessica Zeldin, Esquire
Dated:
Daniel F. Wolcott, Jr., Esquire
Chair
Deborah L. Miller, Ph.D.
M
Jcssica@ Esquire 0
Dated: