Attorney Grievance Commission v. Basinger

WATTS, J. This attorney discipline proceeding involves a lawyer who mailed to his client letters containing egregiously unprofessional language in which the lawyer called his client, among other things, “A TRUE C[* *]T[.]” Carl Stephen Basinger (“Basinger”), Respondent, a member of the Bar of Maryland, and his sister-in-law, Rosina Keys (“Keys”), entered into an attorney-client relationship. 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.” Keys filed a complaint against Basinger with the Attorney Grievance Commission (“the Commission”), Petitioner. On July 22, 2013, on the Commission’s behalf, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Basinger, charging him with violating Mary ⁷⁰⁷ land Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.4 (Communication), 1.16(a) (Declining or Terminating Representation), 8.4(d) (Conduct That is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC). On December 16, 2013, this Court designated the Honorable Judith C. Ensor (“the hearing judge”) of the Circuit Court for Baltimore County to hear this attorney discipline proceeding.

On February 25 and 26, 2014, the hearing judge conducted a hearing. On April 17, 2014, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Basinger had not violated MLRPC 1.4(b), 1.16(a)(3), or 8.4(d). On January 13, 2015, we heard oral argument. For the below reasons, we reprimand Basinger for violating MLRPC 8.4(d).

BACKGROUND The hearing judge found the following facts, which we summarize. On June 6, 1983, this Court admitted Basinger to the Bar of Maryland. Since approximately 2005, Basinger has been a solo practitioner. Keys worked as a legal secretary for Ba-singer off and on for several years, but was no longer doing so in 2012.

Thus, at the time of his alleged misconduct, Basinger was Keys’s brother-in-law, her former employer, and her lawyer. On February 18, 2012, Keys’s grandson died in motor vehicle accident. On that date, Keys telephoned her sister (Basinger’s wife) and informed her of Keys’s grandson’s death. Basinger got on the telephone and offered legal assistance.

Keys responded in the affirmative. Thus, on that date, Ba-singer and Keys entered into an attorney-client relationship. During the following weeks, Basinger mailed letters to third parties on Keys’s behalf and investigated the circumstances of Keys’s grandson’s death. ⁷⁰⁸ On March 8, 2012, an insurance company received from Keys a letter in which Keys denied that she had retained Basinger. On March 9, 2012, Basinger learned of Keys’s letter.

On March 12, 2012, Basinger mailed to Keys two letters, both of which were on his firm’s letterhead. As of that date, Keys was either Basinger’s client or his recently terminated former client; Basinger testified that he “quit” through his first letter. In his first letter, Basinger described what he had done on Keys’s behalf; called Keys “A TRUE C[* *]T” who had “finally f[* * *]ed up one time too many”; accused Keys of being dishonest; and stated that, if he ever saw her again, “it [would] be too soon.” In his second letter, Basinger shared what he had learned while investigating the circumstances of Keys’s grandson’s death; suggested that Keys perhaps was responsible for her grandson’s death; called Keys “a reprehensible human being” with “worthless progeny”; accused Keys of being lazy and dishonest; and wished Keys “only the worst from here on out.” 1 On March 16, 2012, Basinger mailed to Keys a third letter, in which he accused Keys of “trying to weasel [her] way out of paying the full amount of [a funeral chapel]’s bill[,]” for her grandson’s viewing and funeral. 2 The hearing judge stated: “It is abundantly clear that [ ] Basinger wrote the letters to his sister-in-law and that, in her estimation, [Keys] received the letters from her sister’s husband, not her attorney.” There was no indication that Basing-er’s statements negatively impacted Keys’s perception of the legal profession. At the hearing, Basinger denied that his conduct was wrongful. ⁷⁰⁹ STANDARD OF REVIEW In an attorney discipline proceeding, this Court reviews for clear error a hearing judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of law.

See Md. R. 16-759(b)(2)(B) (“The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney Grievance Comm’n v. McDowell, 439 Md. 26, 35 , 93 A.3d 711, 716 (2014) (“[T]his Court reviews for clear error a hearing judge’s findings of fact[.]”) (Citations omitted); Md. R. 16-759(b)(l) (“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”). This Court determines whether clear and convincing evidence establishes that a lawyer violated the MLRPC. See Md. R. 16-757(b) (“The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.”). DISCUSSION (A) Findings of Fact Basinger does not except to any of the hearing judge’s findings of fact.

The Commission does not except to any of the hearing judge’s findings of fact, and asserts that Basinger mailed the three letters to Keys “within the constraints of an attorney-client relationship.” We agree. The hearing judge found that, as of March 12, 2012 (on which Basinger mailed his first two letters), Keys was either Basinger’s client or his recently terminated former client. Significantly, nowhere in Basinger’s response to the Commission’s filing, and at no time at oral argument, did Basinger or his counsel dispute that Basinger mailed the three letters at least partially in his capacity as Keys’s lawyer. Basinger’s first letter includes detailed information about what Basinger had done on Keys’s behalf in his capacity as her lawyer, and, like his other two letters, is headed: “Re: Estate of [Keys’s grandson], a minor[.]” From beginning to end, Basinger’s first letter reads: Re: Estate of [Keys’s grandson], a minor ⁷¹⁰ Dear Rosina [Keys]: I’ve just finished a lengthy conversation with a PIP adjuster at [an insurance company] who tried to create a three-way conversation with you, but you refused.

However, she did fax a copy of the letter you faxed to her earlier to me. I told you at 7:00 p.m. on Saturday evening when you called [my wife] and I begging for money to bury [your grandson] that I would handle this matter for you. I also interceded with [the director] at [a fluneral [c]hapel and she knocked off more than $900 of the bill for his funeral. I also stood ready to write you a check for the full amount of [your grandson]’s funeral.

I told you that I would and you assured me that you approved of my investigating how this accident took place. [A] retired Baltimore City detective, who has worked for me now for more than eight years, was able to get all the information from the Crash Team, the specially assigned Auto Fatality Unit of the Baltimore County Police, to give him everything he needed to make decisions about this case. When I talked to you earlier today on March 9, 2012, the only thing you told me was that you challenged whether I had gotten any reduction of [the funeral chapel’s] bill. I also told you that [a different insurance company] has a larger policy and would probably be able to cover all of the outstanding bill and reduce a substantial amount of the $5000 of borrowed money to pay for [your grandson]’s funeral. You told ... a[n insurance company’s] corporate attorney[ ] that you had not asked me, directed me, contracted me or approved my efforts on your behalf.

While I can understand the intense emotional stress that you’re under, a lie is a lie. For you to spit on the kindness I showed to you by trying to sort out the details of this accident and my willingness to come to your financial aid is reprehensible. You made a statement to another attorney that I had misrepresented my relationship with you as attorney/client. You and I had discussed on more than one occasion that [your daughter] was in a halfway house and would not be ⁷¹¹ capable of managing this matter.

The other option, your former son-in-law, you did not think was a good idea either. And then you tell [the attorney] that you had never talked to me. That is called defamation of character, and, if true, could get me disbarred and at least sanctioned and/or suspended. And your motivation?

My kindness? My tolerance of your absolute evil behavior over all of these years? In closing, YOU ARE A TRUE C[* *]T! If I ever see you again, it will be too soon.

I trust, once the full extent of all that I have to show [my wife] is revealed, that she and your two nieces will feel the same way. You finally f[* * *]ed up one time too many! Yours truly, [signature] C. Stephen Basinger Perhaps even more importantly, as the hearing judge noted, Basinger testified that he “quit” representing Keys through his first letter. Thus, Basinger’s purpose in mailing the first letter was to formally acknowledge the representation’s termination.

(B) Conclusions of Law Basinger does not except to any of the hearing judge’s conclusions of law. 3 The Commission excepts to the hearing judge’s conclusion that Basinger did not violate MLRPC 8.4(d) in mailing the letters to Keys. 4 For the below reasons, we sustain the Commission’s exception. ⁷¹² MLRPC 8.4(d) (Conduct that is Prejudicial to the Administration of Justice) “It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]” MLRPC 8.4(d). “Generally, a lawyer violates MLRPC 8.4(d) where the lawyer’s conduct negatively impacts the public’s perception of the legal profession.” McDowell, 439 Md. at 39 , 93 A.3d at 719 (citation, ellipses, and internal quotation marks omitted). In other words, a lawyer violates MLRPC 8.4(d) where the lawyer’s conduct “tends to bring the legal profession into disrepute.” Attorney Grievance Comm’n v. Reno, 436 Md. 504, 511 , 83 A.3d 781, 785 (2014) (citation and internal quotation marks omitted). For example, in Attorney Grievance Comm’n v. Alison, 317 Md. 523, 540, 531 , 565 A.2d 660, 668, 663-664 (1989), this Court held that a lawyer violated MLRPC 8.4(d) by, among other things, telling an employee of a clerk’s office “you have to take the f[* * *]ing papers”; referring to opposing counsel as a “son of a b[* * * *]” and an “a[* * * * * *]”; and saying “f[* * *] you” to the employee’s supervisor. This Court acknowledged that “[ajttorneys are not prohibited from using profane or vulgar language at all times and under all circumstances”; nonetheless, this Court explained that “[i]t is not difficult to visualize the damage to the court system and to the reputation of the legal profession that would result if attorneys were free to conduct their daily business with court clerks in the manner employed by” the lawyer.

Id. at 538 , 565 A.2d at 667 (citation omitted). Here, clear and convincing evidence persuades us to reverse the hearing judge’s conclusion that Basinger did not violate MLRPC 8.4(d) by mailing 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 dysfunc ⁷¹³ tional 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.” Five circumstances are critical to our conclusion. First, Basinger’s statements were neither inartful slips of the tongue nor spoken in the heat of an oral altercation. Basinger caused his statements to be put into writing in letters that he signed and mailed to Keys.

Basinger had an opportunity to amend his choice of words at any time before he mailed the letters to Keys. 5 Basinger’s failure to take advantage of that opportunity establishes that his statements were deliberate, not inadvertent. Second, as discussed above, Basinger’s statements were made at least partially in his capacity as Keys’s lawyer. All three of Basinger’s letters are on his firm’s letterhead and are headed: “Re: Estate of [Keys’s grandson], a minor[.]” Ba-singer’s purpose in mailing the first letter was to formally acknowledge the representation’s termination. Basinger’s first letter includes detailed information about what Basinger had done on Keys’s behalf.

Basinger’s second letter includes information that he had learned while investigating the circumstances of Keys’s grandson’s death. Basinger’s third letter pertains to the payment of the funeral chapel’s bill. Third, Basinger’s statements were insults aimed at the letters’ recipient (his client, Keys) rather than a third party. For example, Basinger did not make statements along the lines of “The judge was foolish to rule in the other party’s favor” or “Opposing counsel has been rude throughout these proceedings.” ⁷¹⁴ Fourth, Basinger’s statements were not limited to an isolated incident; Basinger engaged in a pattern of numerous insults that spanned three letters.

In his first letter, Basinger called Keys “A TRUE C[* *]T” who had “finally f[* * *]ed up one time too many”; accused Keys of being dishonest; and stated that, if he ever saw her again, “it [would] be too soon.” In his second letter, Basinger suggested that Keys perhaps was responsible for her grandson’s death; called Keys “a reprehensible human being” with “worthless progeny” and a “pathetic and dysfunctional world”; accused Keys of being lazy and dishonest; and wished Keys “only the worst from here on out.” In his third letter, Basinger accused Keys of “trying to weasel [her] way out of paying the full amount of [the funeral chapel]’s bill.” Finally, Basinger chose the word “c[* *]t” to refer to Keys. Merriam-Webster defines “c[* *]t” as a “usually disparaging [and] obscene” term for a “woman.” C[* *]t, Merriam-Webster, http://www.merriam-webster.com/dictionary/cC* *]t. In turn, Merriam-Webster defines “obscene” as “very offensive in usually a shocking way.” Obscene, Merriam-Webster, http://www.merriam-webster.com/dictionary/obscene. In other words, “c[* *]t” is a shockingly offensive insult for a woman, and thus connotes sexism, misogyny, and degradation of women.

C f. Passananti v. Cook Cnty., 689 F.3d 655, 665 (7th Cir.2012) (“A raft of case law ... establishes that the use of sexually degrading, gender-specific epithets, such as ... ‘c[* *]t,’ ... has been consistently held to constitute harassment based upon sex.” (Citations and internal quotation marks omitted) (first ellipses in original)). In short, (1) at least partially in his capacity as Keys’s lawyer, (2) Basinger put into letters (3) numerous insults, (4) including the obscene, sexist word “c[* *]t,” (5) that were aimed at the letters’ recipient (his client, Keys). Together, these five circumstances clearly and convincingly establish that Basinger’s conduct “tends to bring the legal profession into disrepute[,]” and thus were prejudicial to the administration of justice.

Reno, 436 Md. at 511 , 83 A.3d at 785 (citation and internal quotation marks omitted). “It is not difficult to ⁷¹⁵ visualize the damage ... to the reputation of the legal profession that would result if attorneys were free to” communicate with their clients in the egregiously unprofessional manner that Basinger employed. Alison, 317 Md. at 538 , 565 A.2d at 667 . Basinger’s conduct would not be tolerated from one’s coworker, much less one’s lawyer. Cf.

Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 966 (8th Cir.1993) (“[F]or a co-employee to refer to a woman employee as a ... ‘c[* *]t’ in the work place is indefensible.”). We emphasize that our conclusion is based on this attorney discipline proceeding’s particular circumstances. We do not hold that a lawyer violates MLRPC 8.4(d) by