Attorney Grievance v. Markey & Hancock

Attorney Grievance Comm’n v. James Andrew Markey and Charles Leonard Hancock, Misc. Docket AG No. 5, September Term, 2019 ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION – Court of Appeals indefinitely suspended from practice of law in Maryland two lawyers who, for approximately seven years, while working for federal government, participated in exchange of e-mails among group of employees, who were also lawyers, using official government e-mail addresses during work hours to make disturbingly inappropriate and offensive statements that demonstrated bias or prejudice based upon race, sex, national origin, sexual orientation, or socioeconomic status about Hispanic, Asian, and African American people, and people whom they referred to as gay men, who were their colleagues. Such conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to Administration of Justice), 8.4(e) (Bias or Prejudice), and 8.4(a) (Violating MLRPC). Circuit Court for Montgomery County Case No. 468469-V Argued: Oral argument waived/submitted on IN THE COURT OF APPEALS papers OF MARYLAND Misc.

Docket AG No. 5 September Term, 2019 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JAMES ANDREW MARKEY AND CHARLES LEONARD HANCOCK ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. McDonald, J., joins opinion and concurs. ______________________________________ Filed: June 26, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-06 14:11-04:00 Suzanne C. Johnson, Clerk This attorney discipline proceeding involves two lawyers who, for approximately seven years, while working for the federal government, participated in an exchange of e- mails among a group of federal government employees, who were also lawyers, using their official government e-mail addresses during work hours to make disturbingly inappropriate and offensive statements that demonstrated “bias or prejudice based upon race, sex, . . . national origin, . . . sexual orientation[,] or socioeconomic status,” Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)1 8.4(e) (Bias or Prejudice), about Hispanic, Asian, and African American people, and people whom they referred to as gay men, who were their colleagues. James Andrew Markey and Charles Leonard Hancock, Respondents, members of the Bar of Maryland, worked as a Veterans Law Judge and an Attorney-Advisor, respectively, at the Board of Veterans’ Appeals (“the Board”), which is part of the United States Department of Veterans Affairs (“the Department”). For approximately seven years, Markey, Hancock, and three other employees of the Board used their official Department e-mail addresses to participate in an e-mail chain that they called “the Forum of Hate” (“FOH”).

They referred to themselves as FOH members. As members of the FOH, Markey and Hancock sent numerous e-mails that included statements about their Board colleagues that were highly offensive, and that frequently evinced “bias or prejudice based upon race, sex, . . . national origin, . . . sexual orientation[,] or socioeconomic status.” MLRPC 8.4(e). 1 Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of Professional Conduct, or MARPC, and renumbered. We will refer to the MLRPC because the misconduct at issue occurred before this change. As examples, in one instance, 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, and, in another, Markey referred to an African American woman Chief Veterans Law Judge as “a total b[****.]” Among many other examples, Hancock referred to the Chief Veterans Law 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.”2 The Veterans Affairs Office of Inspector General discovered the e-mails, the Veterans Administration terminated Markey, and Hancock voluntarily retired.

Eventually, Markey’s and Hancock’s actions came to Bar Counsel’s attention. On May 30, 2019, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Markey and Hancock, charging them with violating MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), 8.4(e) (Bias or Prejudice), and 8.4(a) (Violating the MLRPC). On June 4, 2019, this Court designated the Honorable Alison L. Asti of the Circuit Court for Anne Arundel County to hear the attorney discipline proceeding. Bar Counsel and Markey filed a joint motion to transfer venue to the Circuit Court for Montgomery County because Markey lived in Montgomery County and Hancock lived in Frederick 2 The “Silence of the Lambs” is a movie about “a cannibalistic serial killer[.]” Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903 , 907 & n.2 (8th Cir. 2006). -2- County.

As a result, this Court designated the Honorable James A. Bonifant (“the hearing judge”) of the Circuit Court for Montgomery County to hear the attorney discipline proceeding. On November 12, 2019, the hearing judge conducted a hearing.3 On January 2, 2020, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Markey and Hancock had violated MLRPC 8.4(d), 8.4(e), and 8.4(a). On February 5, 2020, this Court scheduled oral argument for April 2, 2020. On March 17, 2020, due to the COVID-19 emergency, the Chief Judge of this Court issued an Administrative Order, postponing oral arguments that had been scheduled for April 2020 until further notice.4 Bar Counsel filed a Request to Waive Oral Argument.

On March 27, 2020, this Court issued a Show Cause Order, directing Markey and Hancock to show cause why oral argument should be heard. Markey has not filed a response to the Show Cause Order, or anything else, in this Court. Hancock filed a handwritten document indicating that oral argument was not necessary and that he did not object to the matter being considered on the record. On April 9, 2020, this Court issued an order granting the Request to Waive Oral Argument.

For the below reasons, we indefinitely suspend Markey and Hancock from the practice of law in Maryland. 3 The hearing judge noted that, at the hearing, Hancock testified, introduced evidence, and called two character witnesses, whereas Markey was present but elected not to testify or to introduce any evidence. 4 On March 27, 2020, the Chief Judge of this Court issued another Administrative Order, rescheduling the oral arguments in question for May 2020. -3- BACKGROUND The hearing judge found the following facts, which we summarize. On December 15, 1988, this Court admitted Hancock to the Bar of Maryland. From September 1995 to January 31, 2016, Hancock worked for the Board as an Attorney- Advisor. Hancock’s main job duty was to assist Veterans Law Judges with drafting opinions regarding appeals of dispositions of veterans’ claims for benefits.

On December 14, 1994, this Court admitted Markey to the Bar of Maryland. In November 1995, Markey began working for the Board as an Associate Counsel. In October 2005, Markey was promoted to Senior Counsel. In December 2007, Markey became a Veterans Law Judge.

As a Veterans Law Judge, Markey conducted hearings and issued opinions regarding appeals of dispositions of veterans’ claims for benefits. The hearing judge found that beginning in 2008, and continuing into 2015, Markey, Hancock, Chief Veterans Law Judge Dennis Chiappetta, and lawyers Bernard DoMinh and John Prichard,5 all of whom were employees of the Board, exchanged numerous inappropriate and offensive e-mails using their official Department e-mail addresses. Markey, Hancock, Chiappeta, DoMinh, and Prichard referred to the e-mail chain as the Forum of Hate and referred to themselves as members of the FOH. The e-mails included, in the hearing judge’s words, “many racist, misogynic, xenophobic, and homophobic statements.” 5 Chiappeta, DoMinh, and Prichard are not members of the Bar of Maryland. -4- The hearing judge provided numerous examples of such e-mails.6 As one example, on January 14, 2008, an e-mail exchange consisted of the following: [] DoMinh: Hooray!

Eye weel be go-eeng choo San Peet weeth my boddy Jeeemi. We weel hav good time, si? Eet weel be FIESTA time! [] Markey: Thankfully he stays at his own house when he’s there...so there will be limited social interaction. Perhaps we’ll go out for a taco lunch or something. *** [] Hancock: His photo shows semi-bloated face, like AA’s does.

They BOTH gobble j[***]? [] Markey: Yes, Regan’s [] DoMinh: HARSH! [] Hancock: Hey Trendy – There may be a spot open in AA’s Forum of Gayness. [] DoMinh: Filled to capacity already between El Rojo and Baby Gap. [] Markey: Don’t forget Geezagher and Moran [] DoMinh: They of the ‘leaky reeky feaky’ from their over-filled colostomy bags. (Ellipses in original) (footnotes omitted). Markey acknowledged that, by referring to “a taco lunch[,]” he was mocking the Deputy Vice Chairman’s nationality. The hearing judge explained that, “AA[,]” “El Rojo[,]” and “Baby Gap” were references to lawyers who 6 The hearing judge’s findings of fact contains quotes from a total of ten e-mail exchanges. -5- worked at the Board.7 On December 7 and 8, 2010, e-mails contained the following: [] DoMinh: Did A-Mack leak the BVA e-mail archive to Julian Assange? [] Hancock: No, but he like to leak some semen his way. [] Prichard: Apparently Assange is the one who leaks.

Sabotaged condom gate. *** [] Markey: DoMinh only likes the old Fireplace on DuPont. [] DoMinh: Coincidence that Jimmy can immediately remember the names of a DuPont bar? I think not. Jimmy probably has frequent patron discounts there, too, like El verde scores at Bobby Van’s. Close Encounters of the TURD kind indeed. [] Hancock: Kind thought the same thing gate. [] Markey: Yeah, walked into that one.

Too easy for you guys. I recall walking past that place on the way to the Brickskellar years ago ... and the door was propped open ... creepy looking clientele, and I’m no homophobe. [] DoMinh: James sixth sense regarding his immediate unsettled first impression upon viewing the clientele through the open door at Fireplace is accurate. In the open forum public review website, Yelp DC, even gay dudes wrote to remark that The Fireplace is regarded as a s[***]hole in their community. [] Hancock: Can we talk about gay stuff on the VA email system? [] DoMinh: Riding the grommet comet ain’t my thang. 7 In the conclusions of law, the hearing judge found that, in above-quoted e-mail, DoMinh was ridiculing a Deputy Vice Chairman of the Board’s national origin by mocking his accent. -6- [] Markey: Take me off the list. [] DoMinh: Dupont is a TURD – world nation whose population engages in close encounters of the TURD kind. (Ellipses in original) (brackets omitted).

On December 21, 2012, an e-mail exchange included the following statements: [] Prichard: In another relevant bulletin, the 2nd floor ladies room at the Butte, Montana VA clinic is out of paper towels. [] Markey: That’s where baby t will be shipped when chairman Sullivan arrives [] Hancock: Was that place named after G-Pot? [] DoMinh: No. You’re thinking of the VA Medical Center in the city of Giant Lard Ass Kentucky Fried Chicken Eater, North Dakota. [] Markey: Good xmas hate gate [] DoMinh: This workplace just fills me with the Christmas spirit and goodwill towards all. I’m sure that G-POT, as a self-professed Christian herself, feels the same love and charitable regard to all under her leadership as well. Oh, right she’s clinical a[**]hole. And a hypocrite, to boot.

Scratch what I just said. [] Hancock: Not to mention 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. Whew, I might be hated out... [] Markey: Holy s[***] gate, Batman. Never has morale been so low, and that’s saying something. (Ellipsis in original).

Markey and Hancock acknowledged that “baby t” was short for “baby talk,” and was a disparaging reference to the tone of voice of a woman who was a Vice Chairman of the Board. The hearing judge found that “G-Pot” was short for “Ghetto Hippopotamus,” and was a specific reference to an African American woman Chief -7- Veterans Law Judge. On March 20, 2013, Hancock, Markey, and Chiappetta commented on a photograph of the Little League team of which Hancock’s son was a member, and of which all of the members were white. On that date, an e-mail exchange included the following statements: [] Hancock: First baseball practice.

Not a Charo, Adrian, or BD in the bunch. [] Markey: Nice, but where are the white sheets? Gotta start them when they are young. [] Chiappetta: Come on James, that is the name of the kid’s team: “The Maryland White Sheets.” [] Markey: Of Course, my bad. ‘Bon fire’ after every victory. [] Hancock: Nice management hate. Bout time!! The hearing judge found that that the terms “white sheets” and “Bon fire” were references to the Ku Klux Klan.

The hearing judge found that the term “Charo” was “code for someone of Spanish descent[,]” the term “Adrian” was code for African Americans, and that “BD” were the initials of DoMinh, “who is Asian.” On August 28, 2013, Markey, Hancock, and DoMinh commented on photographs of DoMinh receiving an award. The photographs had been digitally altered to include derogatory terms for people of Vietnamese ancestry. The e-mail exchange included the following statements: [] DoMinh: This is the award they give at the Denver, Colorado VARO.[8] [] Hancock: The sign will say one chicken wing for you, 200 for me when the next boss lady arrives. 8 “VARO” stands for “Veterans Affairs Regional Office.” Deloach v. Shinseki, 704 F.3d 1370, 1372-73 (Fed. Cir. 2013). -8- [] DoMinh: ... or if G-POT become acting “Executive in Charge.” [] Hancock: Fat t[***] shouldn’t manage a KFC for God’s sake. [] DoMinh: Here’s another I-wish-it-were-true dream award. [] Markey: How do you keep doing these? On the paint thing?

Or at home? [] DoMinh: Home. Put the kid to sleep yesterday night and killed time f[***]ing around with the latest grip and grin photo I got of me and Terry (two years after the fact). [] Markey: hilarious. (Ellipsis in original). On September 11, 2013, Hancock, Markey, and DoMinh commented on a photograph of different employees of the Board.

Markey and Hancock participated in the following e-mail exchange commenting on the photograph: [] Hancock: Who’s the chick beside A[.9] Crazy in the top right pic; not the terrorist. [] DoMinh: V[.] B[.]: BVA attorney 1995-97. I actually got introduced to Markey through her. [] Hancock: Like to have my pee pee introduced to her va jay jay. [] Markey: No — pic is much better than how she looked in person. On the same date, e-mails also included the following statements: [] DoMinh: By the way, I just taught a BVA 101 class with A[.] S[.] as my wingman for the first time. She used to write for Markey.

She is a sharp attorney and a pretty driven kid who looks like she’s trying hard to make a mark at the BVA. I recall Markey saying at one time during her novitiate phase as a BVA newbie that that c[**]t G-POT kind of had a hard-on for her. 9 To protect the privacy of other employees of the Board, we refer to them by their initials. -9- I can’t understand why. A[.] is a good kid. What made G-POT decide to f[***] with her? [] Markey: When that 30 day thing came out of nowhere, A[.] had a case on the 30 day list, and K[.] berated her for over a week about it...she was a total b[****] to her. [] DoMinh: Well that explains why during BVA 101 A[.] was particularly emphatic in her presentation about timeliness and the “30-day rule.” She is still traumatized by G-POT rolling on her out of the blue like that. [] Hancock: Previously administered abuse can take awhile to leave.

Sometimes never completely. Meanwhile, looked her up in the yearbook. Nice DSL’s. [] DoMinh: You are in particularly randy mood today, Charles. Must’ve been a long cruise, huh, sailor? [] Hancock: Randy is too gay a word to use here. [] Markey: Nothings too gay for BD [] DoMinh: said Jim, his voice muffled by the closet he is in.

(Ellipsis in original). The hearing judge found that “DSLs” stood for “d[***-]sucking lips.” On September 19, 2013, Markey e-mailed Hancock, Chiappetta, DoMinh, and Prichard a news article regarding an employee of the Frederick County Sheriff’s Office who had been suspended. Markey had edited the article by adding the following paragraph, which indicated that Hancock had supported the suspended employee: Some of his supporters — to include Chuck Hancock of Urbana — came to Thursday’s hearing and got into a heated debate with an opponent. The opponent, a fast food working, basketball type playing man, indicated that such talk just wasn’t cool.

He left, timidly, when 11 people causally tossed ropes at him. - 10 - The hearing judge found that Markey used the phrase “fast food working, basketball type playing man” as a reference to African Americans, and that Markey’s use of the term “tossed ropes” was a reference to the Ku Klux Klan’s use of ropes to lynch African Americans. On January 30, 2014, an e-mail exchange included the following statements: [] Markey: Meanwhile, I just saw BD leave for the evening. What, no nonpaid OT[10] tonight?? [] Hancock: Insane. [] Markey: Ewok stayed later than him — I saw him leaving a few minutes later. WTF?[11] [] Hancock: Maybe a clandestine bj meeting has been arranged. [] Markey: You’re on fire today Chuckles!!! [] Hancock: I clearly am filled with hate.

Need to stop. [] Markey: No!! actually keeps it sane here. The hearing judge found that Markey used the term “Ewok” as a reference to Ewoks, the teddy-bear-like creatures from the Star Wars franchise, and that he used the term to mock a Veterans Law Judge. The hearing judge found that the term “bj” was a reference to fellatio. On March 26, 2014, an e-mail exchange consisted of the following: [] DoMinh: Nothing makes my day more than seeing a beachfeet selfie from a lazy Chief.

Makes me want to punch out a nun. 10 “OT” stands for “overtime[.]” Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 589 (5th Cir. 2020). 11 “WTF” stands for “‘what the f[***].’” State v. Ravi, 147 A.3d 455 , 461 & n.9 (N.J. Super. App. Div. 2016). - 11 - [] Prichard: At least she was merciful enough not to show the rest of herself [] DoMinh: Few things are more hurt-inducing than seeing her astride that mechanical bull with the only thing keeping me from seeing straight up her too-short-for-her-age skirt into her gash was the fortunate placement of angle and shadow. [] Prichard: They started out using a real bull but it got tired. [] DoMinh: In G-POT’s case, the real bull didn’t last long because she ATE it. [] Hancock: And threw the bones at white people. In addition to the e-mails above, on August 28, 2014, Hancock sent an e-mail referring to a woman Chief Veterans Law Judge as follows: “Thought of her on the train this morning when I read this sentence in a book I’m reading. True.

Here’s the sentence: ‘you’re so fat your c[**]t probably turns inside out when you sit down.’” In 2015, during an unrelated investigation, the Veterans Affairs Office of Inspector General discovered the e-mails and began investigating Markey, Hancock, Chiappetta, DoMinh, and Prichard. On December 1, 2015, the Department issued a Notice of Proposed Action, informing Markey that the Department sought to remove him from his position. The Department filed a complaint against Markey with the United States Merit Systems Protection Board, alleging conduct unbecoming of a Veterans Law Judge and misuse of government resources. Markey filed a response, admitting that he had participated in the e-mails, but denying that his conduct constituted good cause for his removal.

The United States Merit Systems Protection Board conducted a hearing, and on November 9, 2017, issued an opinion, finding good cause for Markey’s removal from federal service. The - 12 - Department terminated Markey. Because Hancock was an at-will employee, he was not entitled to the United States Merit Systems Protection Board’s process. On January 31, 2016, Hancock voluntarily retired.

Afterward, the Social Security Administration hired Hancock with full knowledge of his participation in the e-mails that led to his departure from the Board. Hancock later resigned from the Social Security Administration to spend more time with his son, who according to the hearing judge, is a person with a disability. The hearing judge noted that, at the time of the hearing, Hancock worked as a substitute teacher, and volunteered assisting disadvantaged people and people experiencing homelessness. The hearing judge found that Markey’s and Hancock’s misconduct was aggravated by substantial experience in the practice of law and a pattern of misconduct.

The hearing judge found that Markey’s misconduct was also aggravated by a refusal to acknowledge the wrongful nature of the conduct. In support of that finding, the hearing judge observed that “Markey was polite and otherwise appropriate with the [hearing judge,] and admitted [] the underlying facts of this matter.” That said, the hearing judge stated that, although Markey was “not dismissive, he gave the impression that he was resigned to the fact that the Courts were going to do what they were going to do[,] regardless what he may present.” The hearing judge pointed out that, in a letter to Bar Counsel, Markey stated: “I hope [that] the [Attorney Grievance] Commission will not take further action, but[,] if so, I am in no position to fight it.” The hearing judge concluded that “Markey does not fully appreciate the seriousness of his actions and how they interfered with the administration of justice.” The hearing judge found that Markey’s and Hancock’s misconduct was mitigated - 13 - by a lack of prior attorney discipline, cooperation with Bar Counsel’s and the Office of Inspector General’s investigations, and the imposition of other sanctions in the form of Markey and Hancock losing their jobs as a result of the e-mails.12 The hearing judge observed that, although in his Answer to the Petition for Disciplinary or Remedial Action, Markey asserted that he was remorseful and had “‘good moral and ethical character[,]’” at the evidentiary hearing, Markey did not offer evidence of any mitigating factors. The hearing judge found that Hancock’s misconduct was mitigated by remorse and good character and reputation. The hearing judge pointed out that, at the evidentiary hearing, Hancock testified that he was remorseful, that he felt “terrible” that his e-mails “may have hurt people[,]” and “that many of his comments in the e[-]mails were both inappropriate and offensive.” The hearing judge found that Hancock’s expression of remorse was sincere.

The hearing judge noted that, at the evidentiary hearing, Hancock called two character witnesses, each of whom had served as a Veterans Law Judge for decades, and had worked with Hancock on several matters. The character witnesses testified that they had read Hancock’s e-mails, and did not believe that the e-mails were representative of his character. One of the character witnesses testified that Hancock had treated her with respect, that she had never seen him act inappropriately with anyone else, and that she would have no reservations about working with him again. The hearing judge found that there were numerous letters of support that corroborated the testimony of the 12 As to Hancock, the hearing judge acknowledged that Hancock “resigned” from his position, but the hearing judge “accept[ed] that [Hancock] lost his employment due to his participation and statements made in the e[-]mails.” - 14 - character witnesses.

STANDARD OF REVIEW Where no party excepts to any of the hearing judge’s findings of fact, we “treat the findings of fact as established[.]” Md. R. 19-741(b)(2)(A).13 In an attorney discipline proceeding, this Court reviews without deference a hearing judge’s conclusions of law, see Md. R. 19-741(b)(1), and determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC, see Md. R. 19-727(c). DISCUSSION (A) Conclusions of Law None of the parties excepts to the hearing judge’s conclusions of law, all of which we uphold. 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). According to the hearing judge, Markey and Hancock contended that the comments in their e-mails did not violate MLRPC 8.4(d) because the comments were intended to be humorous, and were spread in a small circle of people, without the expectation that the comments would ever be shared outside of the small group, i.e., the comments were private and were not intended to become public.

The hearing judge found that Markey and Hancock made “derogatory statements about Hispanic, Asian, African American, and gay 13 Neither Bar Counsel, Markey, nor Hancock excepts to any of the hearing judge’s findings of fact. - 15 - men[,]” and women. The hearing judge determined that the e-mails were related to the practice of law and violated MLRPC 8.4(d). We conclude that the hearing judge’s determinations are supported by clear and convincing evidence. “[W]here . . . a lawyer engages in conduct that is related to the practice of law[,]” the lawyer violates MLRPC 8.4(d) if the lawyer’s conduct “would negatively impact [the] perception of the legal profession” of “a reasonable member of the public[.]” Attorney Grievance Comm’n v. Basinger, 441 Md. 703, 720 , 109 A.3d 1165, 1175 (2015) (cleaned up). Where a lawyer engages in “purely private conduct—i.e., conduct that is entirely unrelated to the practice of law—” the lawyer violates MLRPC 8.4(d) “if the lawyer’s conduct is criminal or so egregious as to make the harm, or potential harm, flowing from it patent.” Attorney Grievance Comm’n v. Paul, 459 Md. 526, 547-48 , 187 A.3d 625, 637 (2018) (cleaned up).

In Attorney Grievance Comm’n v. Link, 380 Md. 405, 428-29 , 844 A.2d 1197, 1211-12 (2004), this Court explained that conduct that impacts the image or perception of the court or the legal profession or that engenders disrespect for the court and the profession may violate MLRPC 8.4(d). We recognized that the phrase prejudicial to the administration of justice had been interpreted to include conduct that a lawyer engages in outside of the legal profession. See id. at 427 , 844 A.2d at 1210 . It is clear from the discussion in Link, id. at 428-29 , 844 A.2d at 1211-12 , however, that purely private conduct refers to conduct that is unrelated to the practice of law, e.g., social interactions between a lawyer and a non-lawyer, rather than conduct that is unknown by the public.

In Link, id. at 428-29, 408-13 , 844 A.2d at 1211-12, 1199-1202 , we held that a - 16 - lawyer’s conduct was “purely private[,]” and that the lawyer did not violate MLRPC 8.4(d), where the lawyer engaged in a verbal altercation with two employees of the Motor Vehicle Administration. The lawyer was “rude, boorish, insensitive, oppressive[,] and certainly insulting[.]” Id. at 428 , 844 A.2d at 1211 . This Court determined that the lawyer’s conduct was unrelated to the practice of law because it did not occur “during the course of litigation or court proceedings[,]” id. at 426 , 844 A.2d at 1210 , and because, “[a]lthough [the lawyer] was representing a client at the time of the incident, that fact was not readily apparent or sought to be emphasized[; i]ndeed, the [lawyer] resisted informing the [employee who later filed a complaint against him] that he was a lawyer[,]” id. at 428 , 844 A.2d at 1211 . Applying the “patent harm” test, this Court concluded that the lawyer did not violate MLRPC 8.4(d) because his conduct was “neither criminal nor conduct of the kind that the harm or potential harm flowing from it [was] patent[.]” Id. at 429 , 844 A.2d at 1212 .

In Basinger, 441 Md. at 720, 714 , 109 A.3d at 1175, 1171 , this Court held that a lawyer’s conduct was related to the practice of law where the lawyer wrote letters to his sister-in-law, who was his client, and described his sister-in-law as, among other things, “A TRUE C [* *]T” who had “finally f[* * *]ed up one time too many”; and as “a reprehensible human being” with “worthless progeny.” (Alterations in original).14 In Basinger, id. at 707 , 109 A.3d at 1167 , the lawyer and his sister-in-law had entered into an attorney-client relationship in connection with her grandson’s death during a motor vehicle In Basinger, 441 Md. at 718 , 109 A.3d at 1174 , this Court explained “that, in Link, 14 by ‘private,’ this Court meant ‘unrelated to the practice of law[,]’” as opposed to “‘not known or intended to be known publicly.’” - 17 - accident. Within a month, the sister-in-law mailed an insurance company a letter in which she denied retaining the lawyer. See id. at 707-08 , 109 A.3d at 1167 . As a result, the lawyer sent his sister-in-law three letters containing disparaging remarks.

See id. at 708 , 109 A.3d at 1167-68 . This Court determined that the lawyer’s “statements were made at least partially in his capacity as [a] lawyer” because the lawyer’s letters were on his firm’s letterhead and had headings that referenced the sister-in-law’s grandson’s estate, the “purpose in mailing the first letter was to formally acknowledge the representation’s termination[,]” and the letters included information regarding his actions on the client’s behalf. Id. at 713 , 109 A.3d at 1171 . Applying the “reasonable member of the public” test, this Court held that the lawyer violated MLRPC 8.4(d) because his “conduct—in his capacity as [the sister-in- law]’s lawyer, putting into letters numerous insults (including the obscene, sexist word ‘c[**]t’) that were aimed at the letters’ recipient []—would negatively impact a reasonable member of the public’s perception of the legal profession.” Id. at 720 , 109 A.3d at 1175 (second alteration in original).

Here, applying the reasonable member of the public test, the hearing judge concluded that “the insulting[,] demeaning language” that Markey and Hancock used in the e-mails would “undoubtedly bring[] the legal profession into disrepute in the eyes of a reasonable member of the public.” We concur with the hearing judge’s determination. The hearing judge concluded that, in taking the position that the e-mails did not violate MLRPC 8.4(d) because there was no expectation that the e-mails would be shared outside of their group, Hancock misinterpreted this Court’s holding in Link, as had the - 18 - lawyer in Basinger. The hearing judge pointed out that the term “private” in Link meant unrelated to the practice of law, not undisclosed to or unknown by the public. As the hearing judge determined, Markey’s and Hancock’s conduct was related to the practice of law.

When they made the statements in question, Markey and Hancock were a Veterans Law Judge and an Attorney-Advisor of the Board, respectively. By definition, the Board— i.e., the Board of Veterans’ Appeals—performs legal work. Both of Markey’s and Hancock’s positions were law-related and could be performed only by lawyers. Markey’s main job duties were to conduct hearings and issue opinions regarding appeals of decisions concerning veterans’ claims for benefits.

Hancock’s main job duty was to assist Veterans Law Judges with drafting opinions. Markey and Hancock made their statements using their Department e-mail addresses, and, as the hearing judge observed, mostly during work hours. The hearing judge found that, although Markey’s and Hancock’s statements did not directly pertain to a particular veteran or a particular appeal that was before the Board, in their statements, Markey and Hancock repeatedly referred to Board colleagues and Board- related matters. For example, a review of the e-mail exchanges reveals that, on September 11, 2013, Markey discussed a change in rules at the Department and that a woman (an African American Chief Veterans Law Judge), whom he referred to as “a total b[****,]” berated another woman (a Board employee) about having “a case on the 30[-]day list[.]” Hancock responded concerning the woman who had the case on the 30-day list, that he had looked her up in the yearbook and she had “[n]ice [d***-sucking lip]s.” In an e-mail exchange on January 30, 2014, Markey observed that another Board employee was leaving for the - 19 - evening and suggested that the employee would not be getting “nonpaid OT[.]” Markey and Hancock discussed the timeframe that another employee left the office and the reason why.

In an e-mail exchange on August 28, 2013, discussing an award that DoMinh received at a Veterans Affairs Regional Office, Hancock stated: “The sign will say one chicken wing for you, 200 for me when the next boss lady arrives.” The purpose of the Board is to conduct hearings and determine appeals of claims by veterans for compensation. All five of the participants in the e-mail chain were lawyers, and most of the Board colleagues to whom Markey and Hancock referred in the e-mails were also lawyers. One person was an African American woman Chief Veterans Law Judge about whom Markey and Hancock repeatedly made extremely disparaging remarks. Another person was a Board colleague to whom Markey referred in stating that the Chief Veterans Law Judge “was a total b[****] to her[,]” and who, Hancock said, had “nice [d***-sucking lip]s.” Another person was a woman who was a Board colleague about whom Hancock stated: “Like to have my pee pee introduced to her va jay jay[,]” and about whom Markey stated: “No — pic is much better than how she looked in person.” There was a Board colleague who, Hancock said, belonged to a “Forum of Gayness.” And Markey referred to another Veterans Law Judge as “Ewok[.]” Markey and Hancock held positions of authority with the Board and used their federal government e-mail accounts during work hours to make offensive and derogatory remarks in e-mails that discussed Board-related matters and were about other Board colleagues who were also in positions of authority with the Board.

Overall, Markey and Hancock made demeaning remarks about their colleagues and work, during times when they were supposed to be performing the - 20 - work of the Board and made the demeaning remarks using resources provided to them by the federal government to do the Board’s legal work. Under these circumstances, it would be difficult, if not impossible, to conclude that the conduct at issue was not related to the practice of law. Because Markey’s and Hancock’s actions were related to the practice of law, the reasonable member of the public test applies. See Basinger, 441 Md. at 720 , 109 A.3d at 1175 .

The inappropriate and offensive remarks in the e-mail chains would certainly negatively impact the perception of the legal profession of a “reasonable member of the public[.]” Id. at 720 , 109 A.3d at 1175 . Any reasonable member of the public’s perception of the legal profession would be negatively affected upon learning that Markey and Hancock, a Veterans Law Judge and an Attorney-Advisor, used their Department e-mail addresses during work hours to repeatedly send such offensive e-mails about their colleagues in the legal profession over such a long period of time. The remarks not only demonstrated little regard for others who the Department employed in legal positions, but also evidenced little awareness of the professional trust and responsibility given to Markey and Hancock by the Department in their respective roles. A reasonable member of the public would not expect a Veterans Law Judge and Attorney-Advisor of the Board to conduct themselves in such an unprofessional manner in the workplace.

This case is distinguishable from Link, 380 Md. at 428, 411 , 844 A.2d at 1211, 1201 , in which the lawyer’s conduct was unrelated to the practice of law because he was not acting as a lawyer when he got into a verbal altercation at an office of the Motor Vehicle Administration—which is open to the general public—and, during the altercation, the - 21 - lawyer resisted advising the complainant that he was an attorney. By contrast, here, Markey and Hancock sent their e-mails mostly during work hours at their workplace (i.e., the Board), using Department e-mail addresses, and talked about their colleagues and Board-related matters. That Markey and Hancock sent the e-mails using their Department e-mail addresses is significant, because, by definition, the e-mail addresses were provided to them by the Department for use in their work in the legal profession. As the hearing judge correctly explained, Markey’s and Hancock’s contention that the e-mails were not intended to be publicized lacked merit not only because a lawyer’s conduct need not be publicly known to constitute a violation of MLRPC 8.4(d), but also because it would have been unreasonable for Markey and Hancock to expect that their remarks would not become publicly known.

Under the Freedom of Information Act, 5 U.S.C. § 552 , records of the federal government are generally available to members of the public on request, see 5 U.S.C. § 552 (a), subject to certain exemptions, see 5 U.S.C. § 552 (b). As the hearing judge rightly observed, Markey and Hancock did not identify any exemption that would apply to their e-mails. Additionally, where, as here, a federal employee sends an e-mail using a government e-mail address, that e-mail is the property of the federal government, not the federal employee. See, e.g., United States v. Story Cty., Iowa, 28 F. Supp. 3d 861, 877 (S.D. Iowa 2014).

Simply put, e-mails from federal government e-mail addresses can never be presumed to remain private—whether from federal employees to federal employee recipients or to members of the general public. Additionally, as the hearing judge observed, regardless of Markey’s and Hancock’s intentions, their e-mails did not remain private. The e-mails were discovered by the - 22 - Veterans Affairs Office of Inspector General, and subsequently gave rise to an opinion of the United States Merit Systems Protection Board. In that opinion, which the hearing judge admitted into evidence, the United States Merit Systems Protection Board observed that the e-mail chain was the subject of a government watchdog’s blog post and articles by multiple news outlets, including The Wall Street Journal.15 And, of course, the e-mail chain came to Bar Counsel’s attention, and resulted in this attorney discipline proceeding.

Plainly, any contention that Markey’s and Hancock’s conduct fit the definition of purely private conduct is