Baltimore City Terminates Contract with Neo-Nazi Attorney Consultant

Baltimore Sun, August 18, 2016:

The Rawlings-Blake administration said it had fired Glen Keith Allen, 65, a contract employee who had worked on complex litigation for the city since February. The city began investigating Allen’s background after the Southern Poverty Law Center reported that he had a history of supporting the neo-Nazi National Alliance.

The real story – underreported – behind this is that Glen Keith Allen and his City-side boss George Nilson had both worked at mega-firm DLA Piper during different periods. Allen still (as of August 20) has a Client Protection Fund mailing address at DLA Piper’s Mount Washington office with the Maryland courts for his law license.  How a firm like DLA Piper – ironically, headquartered in its Baltimore office just over the City line at the edge of a predominantly Jewish and African-American neighborhood – had a neo-Nazi funder on its payroll is a horrifying mystery.

This well-publicized embarrassment to the city of Baltimore also cost George Nilson his job as city solicitor.

Maryland Lawyers’ Rule of Professional Conduct 8.4(e) designates as misconduct the knowing manifestation:

by words or conduct when acting in a professional capacity 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, provided, however, that legitimate advocacy is not a violation of this section.

There is a good argument that funding a group like the neo-Nazi National Alliance with one’s personal funds doesn’t constitute action in a “professional capacity.” A Southern Poverty Law Center report indicates that Glen Allen not only acted at various times as an attorney for the National Alliance but on at least one occasion donated $500.00 of his own money to the organization.

The representation of neo-Nazis or an alliance of neo-Nazis does not constitute endorsement of neo-Nazi views; MLRPC 1.2(b): An attorney’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. However, do donating one’s own funds to neo-Nazis and then acting as their attorney in another context constitute, together, a manifestation of an 8..4(e) violation?

The following comment is offered in my personal, not professional, capacity.  I do not see how one can reconcile the Maryland Attorney’s Oath (Md. Code Ann., BO § 10-212) with personal support for the views of Nazism, white supremacy or the German Third Reich:

I do solemnly (swear) (affirm) that I will at all times demean myself fairly and honorably as an attorney and practitioner at law; that I will bear true allegiance to the State of Maryland, and support the laws and Constitution thereof, and that I will bear true allegiance to the United States, and that I will support, protect and defend the Constitution, laws and government thereof as the supreme law of the land; any law, or ordinance of this or any state to the contrary notwithstanding.

The Ten Rules of Lawyering

Rule 1: Get Paid Up Front
Rule 2: Don’t Win The Ethics War, Avoid the Ethics War (Foonberg the Great)
Rule 3: 90% of Law School is a Waste, but Which 90%?
Rule 4: Never Believe Career Services, Especially When They Tell The Truth
Rule 5: Law School Is a Terrible Investment; Make the Most of It
Rule 6: It’s Impossible to Kiss Up to a Court Clerk Too Much
Rule 7: “Garbage Law” Doesn’t Exist; It’s All Garbage and It’s All Gold
Rule 8: Swim With a Buddy
Rule 9: Flakes Gonna Flake (aka Screw-Ups Screw Up)
Rule 10: Integrity Is “Good Selfish”

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 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.

Adam Reposa, Attorney at Law….

This report shows how attorney Adam Reposa of Austin has gotten jailed for contempt of court for using a lewd gesture at a prosecutor during a trial, made crazy ads and now created stickers bearing the seal of the City of Austin marking businesses as for “white people only” and affixed them to businesses in gentrifying neighborhoods in Austin, Texas.

Previously I suggested that attorney marketing by means of vulgarities was not so wise. Mr. Reposa’s “www.dwibadass.com” impresses me neither, both because it promises something not objectively verifiable and it’s also just tacky, crude and lawyer-centered, not client-centered. Of greater concern is Mr. Reposa’s “Why Hire Me” page, in which Mr. Reposa states:

“Then once you are convinced that I will give you as good of a chance, if not a better chance, of beating your case as any lawyer alive, my staff will work with you to make a workable fee schedule.”

This is the sort of unverifiable claim that attorney ethics rules discourage – ESPECIALLY when made with the specific intent to persuade a perspective client to hire (as the title of that page suggests.”

The State Bar of Texas reports that Mr. Reposa underwent a “fully-probated suspension” for three years. Because the Maryland Bar does not use a disciplinary status, I do not know precisely what that means. Mr. Reposa was admitted to the Bar. Mr. Reposa was admitted to the Bar in September 2003 and graduated from the respected University of Texas School of Law in June 2001.

Weed falls out of attorney’s pocket in court

Marijuana.com, March 18, 2015:

“Case in point: a lawyer in New London, Connecticut let a two ounce sack of marijuana slip form his pocket to the floor while in court yesterday. The best part? The lawyer, 46-year-old Vincent J. Fazzone, was in court representing a client, claims the weed wasn’t even his.”

The article, quoting from the Hartford Courant, indicates that the attorney claimed that the pot belonged to his client.

There are a number of ethics issues. If the weed was payment from the client for advanced services, it should have been escrowed in a Bar-approved escrow silo or warehouse with appropriate warehouse receipts showing the client, date and gram weight of the drop – to protect the weed against the attorney’s own creditors, IRS levy on the client’s chronic, etc. [Kidding. Sort of.] The attorney also had a duty to keep the weed entrusted to him from harm; exposing a client’s BC Bud to the greedy hands of the Sheriff would seem to violate ethics rule 1.16. [Kidding. Sort of.]

If the weed became the property of the attorney in a value-for-value representation-for-mowiewowie swap, there needed to be a document to track the earn and a formal removal of the stankweed from trust to operating account, wherein it would be then taxed as in-kind income. Under current IRS regulation, the Treasury of the United States prefers currency or checks drawn on the same, rather than 28% of the actual ganja.

No, I do not consume marijuana.

Defense lawyer: “I would put petrol on her and set her alight”

BBC, February 27, 2015 (H/T Talking Points Memo):

Mukesh Singh, the bus driver who admitted driving the bus during the incident, but denied taking part in the attack, was one of five men convicted of Jyoti’s rape and murder and sentenced to death by hanging.

 

. . .

 

Speaking about the appalling attack, which he refers to as “an accident”, Mukesh Singh suggested the rape and beatings were to teach Jyoti and her friend a lesson that they should not have been out late at night. And he criticised Jyoti for having fought back against her attackers saying: “When being raped, she shouldn’t fight back. She should just be silent and allow the rape. Then they’d have dropped her off after ‘doing her’, and only hit the boy.”

 

He said that executing him and the other convicted rapists/murderers will endanger future rape victims: “The death penalty will make things even more dangerous for girls. Now when they rape, they won’t leave the girl like we did. They will kill her. Before, they would rape and say, ‘Leave her, she won’t tell anyone.’ Now when they rape, especially the criminal types, they will just kill the girl. Death.”

To me, that’s not the disgusting part. It should be, but I am hardened to sociopathic violent thugs blaming others for their crimes. So I am not disgusted.

What does disgust me? This, from this Indian death row inmate’s attorney:

In a previous televised interview, lawyer AP Singh said: “If my daughter or sister engaged in pre-marital activities and disgraced herself and allowed herself to lose face and character by doing such things, I would most certainly take this sort of sister or daughter to my farmhouse, and in front of my entire family, I would put petrol on her and set her alight.” And he confirms to Udwin in the documentary that his stance remains the same: “This is my stand. I still today stand on that reply.”

I don’t know what offends me more: that an attorney would so depravedly risk his death row client’s case by endorsing his client’s capital offense, or that an attorney would so brag that he would defy Indian law and commit homicide by burning his sister to death. In Maryland, you can face attorney discipline merely for calling your client vulgar insults, but I guess in India bragging about one’s intent to burn a female relative to death during a death row appeal is not a professional responsibility concern.

To avoid: calling your client, in written correspondence to her, an obscene name

Sometimes I can be downright grouchy, truth be told; I have many faults and, sometimes, that’s one of them.

But I haven’t yet lost my cool so badly as to write a letter to a client calling her an obscenity in print, wishing her malice and insulting her progeny.

From page one of AGC v. Basinger:

After learning that Keys had denied that she had retained him, Basinger mailed to Keys letters in which he called Keys “A TRUE C[**]T” who had “finally f[***]ed up one time too many”; called Keys “a reprehensible human being” with “worthless progeny” and a “pathetic and dysfunctional world”; accused Keys of being lazy and dishonest, engaging in “defamation” and “absolute evil behavior[,]” and “trying to weasel [her] way out of paying the full amount of [a funeral chapel]’s bill”; suggested that Keys perhaps was responsible for her grandson’s death; stated that, if he ever saw her again, “it [would] be too soon”; and wished Keys “only the worst from here on out.”

If you are that unhappy with a client, you should simply terminate the relationship (in a manner consistent with, and to the extent permitted by, applicable Rules.) Some clients deserve to be fired and a few rare ones deserve to be chastised; none deserve to be hit with obscenities.

“Don’t kiss your clients, but market like you want to.” – WHAT?

Mark Britton of Avvo.com thinks that I should market to my clients in a way that suggests that I want to kiss them.

Um, no.  Lawyer jokes to the contrary aside, we are not sex workers.

I used to advertise with Avvo, and had a moderately favorable opinion of Avvo with some reservations. I feel “nice” about my so-called “Excellent” rating bouncing between 8.3 and 8.6, though I am aware of the preeminent Maryland attorneys who rank lower and purveyors of, in my opinion, vapid and/or dangerous nonsense like Lee Rosen of North Carolina who, despite public disciplinary censure, have a “Superb” rating of 10.0. But I thought that competition with Martindale-Hubbell’s rating system was a good thing.

Avvo lost my favor when I realized just how much damage Avvo was encouraging potential clients to do online by posting, without confidentiality or privilege, intimate details of their cases for every English-speaking opposing counsel, private investigator, detective and prosecutor on the planet to read.  Most of my comments on their comment/question boards were to tell people to shut up and talk to a lawyer privately, particularly in criminal cases.

I believe firmly that marketing to clients “as if I want to kiss them” is unprofessional and beyond creepy. Maybe that works for selling fashion or perfume or fast cards. It is inappropriate for lawyers, even as a metaphor. Clients don’t want to be courted or romanced; they want confidence that the lawyers whom they hire to handle often the least pleasant things in their lives will be effective, competent, diligent and trustworthy. Maybe the “kiss” metaphor works for selling online marketing packages to young, desperate attorneys of weak morals, but in this office the business handshake works just fine.

Disbarred for bad mouthing judges, prosecutors and public defenders

In February 2014, following oral argument in January, the Maryland Court of Appeals disbarred an attorney for emailing a number of attorneys, including long-time former Attorney Grievance Commission member George Meng, Esquire, defamatory claims of corruption regarding a number of judges and elected officials including the Attorney General.  Opinion of Judge Greene in Attorney Grievance Commission v. Frost here.

Couple of points.

In his dissent, Judge McDonald noted that few attorneys and judges have not commented on the “parentage” of a judge after an unfavorable or disagreeable ruling. The dissent, Judge Adkins’s concurrence and the majority opinion all note that truthful speech protected under NYT v. Sullivan’s First Amendment jurisprudence would not violate Rule 8.2. Judge Adkins goes further to express concern that mere in-office comments or private comments to a spouse about a judge should not generate “word police” supervision by the Court of Appeals (by logical extension, Bar Counsel and the Attorney Grievance Commission.)

Judge McDonald expressed concern that the Court of Appeals should not disbar an attorney through the use of mere pretrial requests for admissions of fact under the Rules of Court; he would have suspended the attorney and remanded the matter for a fuller evidentiary hearing. Judge Adkins did not agree with Judge McDonald on this procedural point.  Million dollar judgments can issue from facts admitted my failures to respond to requests for admissions, but this might be a different issue to the extent that the Court of Appeals itself is, in a sense, a party holding at least a trustee interest in the protection of the Bar.

This case involved defamation that a) accused the bench of corruption and not mere incompetence, indifference or obstinance, b) had no known factual basis, c) was not explained in any manner by the attorney in question, d) had no mitigation on the record, due to the failure of the attorney to participate in the proceedings, e) was emailed to many attorneys, including the aforementioned preeminent Mr. Meng, f) involved no advocacy for a client or other fulfillment of any other ethical duty, and g) reflected arguable instability on the part of the author, as suggested in the dissent. Most Rule 8.2 violations will not involve such concerns.

The Court of Appeals has, in my view wisely, not entertained making adultery or sexual relationships in themselves ethical violations unless they involve ethical conflicts in client case work (e.g. divorce cases.) Many attorneys divorce, and some who divorce do so after an extramarital affair or otherwise become intimately involved before a court of equity has signed a decree of absolute divorce. Adultery remains a crime under Maryland law, though one with a maximum fine less than the new proposed state minimum hourly wage of $10.10 per hour. If Bar Counsel found itself drafted into the role of bedroom police, particularly within or after possibly acrimonious divorces involving Bar members, the family lives of attorneys and staff in that office might themselves face strain from the overwork and case volume.

In similar vein, the concern that the Court may find itself compelled to act as the “word police” over the Bar is legitimate, but in my view not realized in the holding in Frost. This case involved a number of facts so extreme and unusual that it is easily distinguishable in future cases involving allegations of improper comments by attorneys, and certainly distinguishable in terms of sanctions in most such cases. The Respondent did not participate in this case; the Court accordingly entertained none of the often-referenced ABA-suggested mitigating factors in its sanctions analysis, not even whether the Respondent had a disciplinary history. In most cases, an attorney default wouldn’t happen; most attorneys want to remain attorneys or to leave the profession by means other than a hard sanction.

In short, though attorney friends of mine have expressed some concerns about AGC v. Frost, I don’t view this case as a threat to the civil or professional liberties of attorneys, short- or long-term.

UPDATE: Check out the much more critical analysis of Indiana attorney Paul Ogden, Esquire, regarding this disciplinary case.