AGC v. Marcalus and some advice to new attorneys

If you practice in MD, go read AGC v. Marcalus, though possibly NOT on your work computer.

A few points.

1) The attorney in question was barred one year before me, which means that he got his law license about one year before the words “World Wide Web” were well known.  I got barred in 1994, and around the time of my swearing in I learned that phrase, meaning that all of my legal education was pre-Net and essentially all of my practice post-Net.  The respondent was admitted in December 1993.  On the one hand, Respondent’s ethics education predated much of modern telephony and hand-held technology.  On the other hand, the Court of Appeals found his substantial experience in the practice of law since 1993 to be an aggravating factor, per well-established precedent and ABA guidelines.

2) Bar Counsel is not walking around looking for an opportunity to invade your sex life. Its attorneys and investigators have other things to do. Unless your dating life affects your professional work itself – sexting an unrepresented counterparty in this case or sexting one’s own client in a prior misconduct case by the same Respondent attorney – Bar Counsel doesn’t want to make your bedroom its business, and almost certainly never will (barring extremely bizarre or patently outrageous law-school scenarios.) But if you bring that part of your life into your professional life – by dating your subordinate, flirting with opposing counsel during a deposition and especially if you get involved sexually with your client, you are inviting a world of humiliation on yourself and the people you care about.

3) The wisest policy is the most conservative: a complete separation of your dating life and work. Don’t put the embarrassing details of your social life into the datastream of your work life, don’t let the people in your job and the people in your intimate life overlap unless it’s something stable and permanent (e.g. spouses as partners, etc.).  Dear heaven, don’t date clients, counterparties, opposing counsel, people in your firm.  I’d even recommend against dating fellow attorneys in your practice area in your town, though that’s admittedly very conservative advice. Don’t date your associates; sexual harassment by attorneys is explicitly against the DC rules and is probably by implication prohibited under MD Rule 8.4(d) and (e). Keep sexual innuendo out of the office, for multiple reasons.

If you want to have a dalliance, to do something foolish, fine: have your nonsense. Just do it (if you must) with a real estate agent across town or the owner of a boutique three zip codes away with no connection to your files, your clients or your firm. Maybe don’t sext, as well; maybe it’s fun and games but to Bar Counsel it’s discoverable electronically stored information.

4) Not every violation of your promise “at all times to demean myself fairly and honorably” (per the Oath you took before signing the Test Book) has an explicit black-letter rule section in the Maryland Lawyers’ Rules of Professional Conduct. Be aware that Rule 8.4(d) prohibits conduct that tends to prejudice the administration of justice, but that it’s in the case law that examples are found. To some extent, it is perhaps the “junk drawer” of the Court of Appeals; they put it there when no other obvious location suffices but a disciplinary response is needed to unfair or dishonorable conduct.

Earlier this year, an attorney caught a reprimand for calling his family-member client an obscene epithet in an email.  Judge Watts of the Court of Appeals wrote that unanimous decision, and wrote for a unanimous Court of Appeals in the Marcalus case as well this week.  Neither violation would have been as likely in the 1970s, where email did not exist, cell phones and texting did not exist; perhaps the foolishness of sending an indecent Polaroid or a handwritten or Selectric-typed epistle would have caused greater reflection (or maybe not).  Bottom line: the increase in technology in communications has created increased fora in which to have a bad day and make a serious lapse in judgment. If you have a Maryland law license, you should anticipate that your iPad and your cellphone are accountability zones for that license; disciplinary precedent makes that point clear.

Posted by Bruce Godfrey

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