Maryland Bar Bulletin
Publications : Bar Bulletin : February 2006

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Attorney Civility in the Community

Much has been written in recent years about the need for civility in the practice of law. However, many members of the bar may not be aware of the extent of the requirements of the Maryland Rules of Professional Conduct (MRPC) with regard to civility in dealing with not only the courts, other attorneys and our clients, but also the community-at-large. The Court of Appeals has recently established new boundaries for such behavior.

In the case of Attorney Grievance Commission of Maryland v. Link, 380 Md. 405 (2004), the respondent was charged with violating MRPC 4.4, Respect for Rights of Third Persons, and in so doing, acting in a manner prejudicial to the administration of justice, in violation of MRPC 8.4 (d).

The conduct in which the respondent engaged and the remarks that he made to a third party, while occurring during the representation of a client and in the course of obtaining information beneficial to that client, did not occur in the courthouse or involve court personnel. Neither were the parties to the litigation or their attorneys involved in the confrontation or the objects of the respondent's conduct or remarks, and it was not during the actual litigation process or any one of its stages that the incident at issue took place.

However, the court went on to interpret the phrase "prejudicial to the administration of justice" broader than the practice of law, to encompass "conduct the lawyer engages in outside his or her role as a lawyer." Attorney Grievance Commission v. Childress, 360 Md.373, 383, 758 A2.d 117, 122 (2000). The court also cited Attorney Grievance Commission v. Sheinbein, 372 Md.224, 251, 812 A2.d 981, 997 (2002) where the court found conduct prejudicial to the administration of justice to be in violation of MRPC 8.4 (d) when there has either been conduct that is criminal in nature or conduct that relates to the practice of law.

In Link, the respondent went to a Motor Vehicle Administration office to obtain insurance coverage information in relation to one of his cases. He engaged in a loud and angry confrontation with a clerk in which he utilized sarcasm, verbal abuse, offensive and disrespectful language. The court found that although the respondent's conduct was rude, boorish, insensitive, oppressive and certainly insulting, it was not even arguably criminal. Although he was representing a client at the time of the incident, that fact was not readily apparent or sought to be emphasized. Indeed, the respondent resisted informing the clerk that he was a lawyer.

Although the court found that the kind of conduct exhibited by the respondent when directed to a member of the public by a lawyer negatively affects the perception of lawyers and, in that sense, may breed disrespect for the legal profession and potentially for the courts, it concluded that it is neither feasible nor desirable that every social interaction between a lawyer and a non-lawyer be regulated to ensure the lawyer acts, in each instance, with the requisite civility and courtesy. The court specifically held that only when such purely private conduct is criminal or so egregious as to make the harm, or potential harm, flowing from it patent will that conduct be considered as prejudicing, or being prejudicial to, the administration of justice. Since the court found that the conduct in this case, although inappropriate and unfortunate, was neither criminal nor conduct of the kind that the harm or potential harm flowing from it was patent, the court could not hold the conduct to be prejudicial to the administration of justice and, thus, it was not sanctionable.

In a concurring opinion, the Honorable Irma S. Raker, Court of Appeals of Maryland, agreed that the respondent's conduct would not subject him to discipline under the Rules of Professional Conduct because Bar Counsel failed to sustain its burden to prove that respondent used a means in representing a client that had no substantial purpose other than to embarrass, delay or burden a third person in violation of MRPC 4.4, because although the respondent was rude, his purpose was not to embarrass, delay or burden a third person.

Judge Raker disagreed with the majority conclusion that because the respondent was not dealing with a person concerned with the legal process, the case does not fall within MRPC 4.4. She disagreed with the majority's determination that in order to come within the ambit of MRPC 4.4, the complainant must be a party to the litigation in which the respondent is an attorney, a witness or opposing counsel. Judge Raker opined that 4.4 is broad enough to the cover the conduct of a lawyer who, while gathering information in preparation for a trial, interacts with a State employee and uses means in representing a client which have no substantial purpose other than to embarrass, delay or burden a third party.

Judge Raker also opined that the standard ". . . so egregious as to make the harm, or potential harm, flowing from it patent," is ambiguous and illusive. In Judge Raker's opinion, due process requires more – a lawyer is entitled to have fair notice of conduct which would subject him or her to discipline under the Rules of Professional Conduct. Moreover, she would construe MRPC 8.4 (d) to apply to criminal conduct or, when dealing with private conduct, such conduct that is in some way connected to the practice of law.

Despite Judge Raker's concerns, and despite the fact that Link avoided sanctions, as a result of Link, lawyers practicing in Maryland should be on notice that a lack of civility, even if not directly related to the practice of law, may result in professional discipline.

Brian E. Barkley, an attorney with the firm of Barkley & Kennedy, Chartered, in Rockville, Maryland, is a member of the Bar Association of Montgomery County's Ethics Committee.

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Publications : Bar Bulletin: February 2006

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