You know how there are some stores that you just can’t stay away from? I guess lawyers and judges have difficulty in staying away from the stupid store. It’s not that hard to do, but there’s something almost magnetic about its allure.
It seems that I am visiting the stupid store more often than I used to. Whether that’s because the past few months of confinement have addled minds or because people don’t think before they talk (that NEVER happens to lawyers and apparently judges as well), or because people are just cranky, crabby, and now displaying their true beliefs. Whatever. It’s ugly out there. I don’t know if anyone remembers how to be kind or ever tries to be any more.
So, in the stupid store, there’s now presently a run on nastiness, vitriol, and vituperative words along with plain old-fashioned foot in mouth, and there’s plenty in stock to go around. Let’s go shopping with a judge and check his shoe size. Two Maryland lawyers also shopped there, and they have been suspended for essentially cleaning out the supplies of nastiness, vitriol, and blatant prejudice.
Here in my very own Central District of California, the chief judge, Cormac Carney, who just assumed the chief judgeship last month, has resigned that position. Intemperate comments did him in. The chief judge was bewildered by blowback arising from his use of the term “street smart” to refer to the Clerk of the Court and Court Executive, Kiri Gray, a black woman, a term that he considered complimentary to Gray. Then Carney complained that criticisms of his remark were analogous to the conduct of the Minneapolis cop who put his knee on George Floyd’s neck. Really? You can read the entire story here.
Miscommunications and hurt feelings abounded. Perhaps there is a lesson here for all of us in how to communicate, how not to communicate, and if it prompts any of us to count to ten before speaking, so much the better. Usually, less is more. I used to think that sincere apologies could soothe hurt feelings, but I am not so sure these days. Since there did not seem to be any way that the chief judge and the clerk/executive officer would be able to work together, the chief judge resigned as chief judge but retained his position as a federal judge.
We can all probably agree that the indefinite suspensions imposed on two government lawyers in Maryland who used vile, even terrifying, words in emails on the job, no less, were completely justified. First, you would think that government lawyers using government emails would be way more temperate in their language, but you would be wrong.
One of the two lawyers indefinitely suspended was an administrative law judge, James Andrew Markey, the other an attorney advisor, Charles Leonard Hancock. Both were working for the Board of Veterans Appeals. The Maryland Court of Appeals opinion about the two speaks for itself. Read it and be mindful of the lessons to be learned and what not to say in emails or any other form of communication that can be seen by others.
The group of employee lawyers communicating through email chain called it a “forum of hate.” (Their words, not mine.) Great words to use in emails, hardly the kind of language appropriate in any email, let alone a government email system.
Let’s just take some examples that the court identified: in response to a photograph of Hancock’s son’s all-white Little League team, Markey asked where the white sheets were and stated “ ‘[b]onfire’ after every victory[,]” referencing the Ku Klux Klan. In another, Markey referred to an African-American woman, a chief veterans law judge, as “a total b [****.]”
Among many other examples, Hancock referred to the aforementioned CVL judge as a “Ghetto Hippopotamus” and “a despicable impersonation of a human woman, who ought to [have] her cervix yanked out of her by the Silence of the Lamb[s] guy, and force[-]fed to her.” Nauseating, disgusting, vile.
The Veterans Affairs Office of Inspector General discovered the e-mails, the Veterans Administration terminated Markey, and Hancock voluntarily retired, a smart move on his part. Eventually, their actions came to bar counsel’s attention. Not a moment too soon.
What did the two attorneys have to say for themselves? They claim that their private exchanges fell outside the ethics rules. Oh, please. On a government email system? Really?
Adopting the hearing officer’s conclusions, the Court of Appeals said that the conduct of the two attorneys was related to the practice of law, “knowingly manifesting bias and prejudice based upon race, sex, sexual orientation, national origin, and socioeconomic status.” They were acting as lawyers when they made the remarks and thus their conduct was prejudicial to the administration of justice.
These were not “stray remarks.” In the words of the hearing officer, the numerous emails contained statements that were “racist, misogynistic, xenophobic and homophobic.” Thus, the discipline imposed. According to the court, Markey is already suspended for reasons unrelated to this case, and Hancock is inactive. They should both stay that way but if there’s any attempt to try change their statuses, their indefinite suspensions would take effect.
What boggles my mind, whatever is left of it, is how could two lawyers who have been in practice for years (1988 and 1994) could be so stupid. Obviously, they shopped at the stupid store, and it seems there is plenty of inventory left in stock.
So, lessons to be learned? You never get into trouble by being quiet; it’s when we open our mouths (I see a foot). We lawyers love to talk, love to email, love to text. Three ways we earn our money and three ways we get into trouble.
Even with the pandemic raging, the stupid store is one store that will never go out of business.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.