Attorney Grievance v. Basinger , 441 Md. 703 ( 2015 )

Attorney Grievance Comm’n v. Carl Stephen Basinger, Misc. Docket AG No. 30,
September Term, 2013
ATTORNEY DISCIPLINE – SANCTIONS – REPRIMAND – Court of Appeals
reprimanded lawyer who mailed to his client letters containing egregiously unprofessional
language in which lawyer called his client, among other things, “A TRUE C[**]T[.]” Such
conduct violated Maryland Lawyers’ Rule of Professional Conduct 8.4(d) (Conduct that is
Prejudicial to the Administration of Justice).
Circuit Court for Baltimore County
Case No. 03-C-13-008954
Argued: January 13, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 30
September Term, 2013
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
CARL STEPHEN BASINGER
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: February 23, 2015
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 Maryland 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 Basinger 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, Basinger 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.
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
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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 Basinger’s statements negatively
impacted Keys’s perception of the legal profession. At the hearing, Basinger denied that
his conduct was wrongful.
1
The record contains Basinger’s second letter, in which he also accused Keys of
having a “pathetic and dysfunctional world.”
2
At the hearing, Basinger testified that he was instrumental in directing Keys and
her daughter to the funeral chapel. In a letter that was dated February 28, 2012 and
addressed to the funeral chapel’s director, Basinger “guarantee[d] full payment of [the
funeral chapel’s] reasonable bill.”
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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)(1) (“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
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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
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 f]uneral
[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
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than one occasion that [your daughter] was in a halfway house and would not
be 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
3
In his response to the Commission’s filing, Basinger contended that this Court
would violate the Free Speech Clause of the First Amendment to the United States
Constitution by sanctioning him for his statements. At oral argument, Basinger’s counsel
withdrew that contention in light of Attorney Grievance Comm’n v. Frost, 437 Md. 245,
262, 85 A.3d 264, 273 (2014) (“Respondent’s statements are not entitled to protection
under the First Amendment.”).
4
The Commission also excepts to the hearing judge’s conclusion that Basinger did
not violate MLRPC 8.4(d) in allegedly continuing to act on Keys’s behalf after the
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Commission’s exception.
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
“[a]ttorneys 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
representation’s termination. The Commission, however, does not except to the hearing
judge’s conclusion that Basinger did not violate MLRPC 1.16(a)(3) (Terminating
Representation); thus, we do not address the matter.
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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
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.” 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[.]” Basinger’s purpose in
mailing the first letter was to formally acknowledge the representation’s termination.
5
In fact, the hearing judge found that Basinger dictated his first two letters three days
before mailing them to Keys.
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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.”
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/c[**]t. In turn, Merriam-
Webster defines “obscene” as “very offensive in usually a shocking way.” Obscene,
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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. Cf. 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
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 slighting
a client in any way or by using obscenities at any time. See Alison, 317 Md. at 538, 565
A.2d at 667 (“Attorneys are not prohibited from using profane or vulgar language at all
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times and under all circumstances.” (Citation omitted)). We simply recognize that
Basinger’s egregiously unprofessional manner of communicating with Keys grossly
exceeded an appropriate expression of grievances with Keys, and thus tended to bring the
legal profession into disrepute.
Basinger raises red herrings in contending that he did not violate MLRPC 8.4(d)
because: (1) his statements were “private” in the sense that they were “not known or
intended to be known publicly”; and (2) there was no indication that Basinger’s statements
negatively impacted Keys’s perception of the legal profession.6 Both of Basinger’s
contentions are foreclosed by this Court’s holding in Attorney Grievance Comm’n v.
Saridakis, 402 Md. 413, 431-32, 430, 936 A.2d 886, 897, 896 (2007), in which, writing for
this Court, the Honorable Glenn T. Harrell, Jr. concluded that a lawyer violated MLPRC
8.4(d) by negatively impacting the public’s perception of the legal profession by violating
MLRPC 1.8(c) (Conflict of Interest: Current Clients: Preparing Instrument Giving Lawyer
Any Substantial Gift); in turn, the lawyer violated MLRPC 1.8(c) because “[a] reasonable
member of the public could well look askance at [the] arrangement [that the lawyer made]
and suspect that collusion could have taken place.” (Footnote and emphasis omitted). As
6
Keys’s testimony seemingly undermines the hearing judge’s finding. Specifically,
Keys testified that she “didn’t care about [Basinger’s first letter’s] first page[,]” in which
Basinger accused Keys of engaging in dishonesty, “defamation[,]” and “absolute evil
behavior[.]” (Emphasis added). Keys added that the first page “didn’t bother [her] at all”
because “that’s just [Basinger], that’s just how he is.” By contrast, Keys was “bothered”
by “the second page[,]” in which Basinger called Keys “A TRUE C[**]T[.]” (Emphasis
added). Keys added: “It angered [her] that anyone should . . . use that kind of language,
especially an attorney on his letterhead, that he signed . . . . No woman deserves to be
called that.” (Emphasis added). Additionally, it is undisputed that Basinger’s statements
prompted Keys to file a complaint against Basinger with the Commission.
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Judge Harrell aptly explained, “[f]or purposes of finding a violation of M[L]RPC 1.8(c), .
. . the objective perception by a member of the public, the protection of whom [the
MLRPC] are created and enforced, is the proper vantage point from which to consider
whether an actionable appearance of impropriety occurred.” Id. at 430 n.10, 936 A.2d at
896 n.10 (emphasis added) (citation omitted).
Thus, in Saridakis, id. at 430 n.10, 430, 936 A.2d at 896 n.10, 896, in determining
whether the lawyer’s conduct violated MLRPC 1.8(c), this Court applied the “objective”
standard of whether “[a] reasonable member of the public could well look askance at such
an arrangement and suspect that collusion could have taken place[,]” not the subjective
standard of whether the lawyer’s conduct actually impacted the public and/or a particular
person (e.g., a complainant) who is involved with the attorney discipline proceeding. Such
a standard is equally applicable in determining whether a lawyer’s conduct violates
MLRPC 8.4(d) by engaging in conduct that negatively impacts the public’s perception of
the legal profession.
As Judge Harrell pointed out in Saridakis, id. at 430 n.10, 936 A.2d at 896 n.10, this
objective standard promotes our purpose to protect the public and the public’s confidence
in the legal profession. Indeed, departing from Saridakis would shift this Court’s focus
from a lawyer’s conduct to: (1) other people’s subjective perceptions of the lawyer’s
conduct; and (2) whether other people knew of the lawyer’s conduct. Such a framework
would lead to the absurd result that whether a lawyer violated MLRPC 8.4(d) would depend
on: (1) how sensitive other people are; and (2) how much the lawyer’s conduct was
publicized. For example, a lawyer could violate MLRPC 8.4(d) by making certain
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statements to an extremely sensitive client, yet the lawyer would not violate MLPRC 8.4(d)
by making the exact same statements to an extremely thick-skinned client. As another
example, a lawyer could violate MLRPC 8.4(d) by making certain statements to a client if
the client publicized the lawyer’s statements; yet, the lawyer would not violate MLRPC
8.4(d) by making the exact same statements to the client if the client refrained from telling
anyone else about the lawyer’s statements.7
The objective standard that this Court articulated in Saridakis is strengthened even
further by the circumstance that, as in Saridakis, in countless other attorney discipline
proceedings, this Court has held that lawyers violated MLRPC 8.4(d) by engaging in
conduct that negatively impacted the public’s perception of the legal profession, even
though this Court did not mention, let alone consider, whether the lawyers’ conduct
actually negatively impacted the perception of the legal profession of the public and/or
particular people who were involved with the attorney discipline proceedings. See, e.g.,
Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 40, 69 A.3d 1121, 1143-44 (2013);
Attorney Grievance Comm’n v. Heung Sik Park, 427 Md. 180, 194, 46 A.3d 1153, 1161
(2012); Attorney Grievance Comm’n v. Butler, 395 Md. 1, 15, 909 A.2d 226, 234 (2006);
7
Ultimately, it does not matter whether the lawyer’s conduct was publicized before
this Court considers the attorney discipline proceeding. By issuing an opinion that will
become available to anyone with an internet connection, this Court will effectively inform
the public of the lawyer’s conduct. It would be ironic if we issued a publicly available
opinion in which we recited the lawyer’s conduct, then concluded that the lawyer’s conduct
could not have negatively impacted the public’s perception of the legal profession because
the public did not actually know of the lawyer’s conduct.
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Attorney Grievance Comm’n v. Kapoor, 391 Md. 505, 532, 894 A.2d 502, 518 (2006);
Attorney Grievance Comm’n v. White, 354 Md. 346, 363-64, 731 A.2d 447, 457 (1999).
Indeed, on the other side of the coin, in Attorney Grievance Comm’n v. Rand, 411
Md. 83, 95-96, 981 A.2d 1234, 1242 (2009), this Court held that a lawyer did not violate
MLRPC 8.4(d), but did not even mention, let alone consider, whether the lawyer’s conduct
actually negatively impacted the perception of the legal profession of the public and/or a
particular person who was involved with the attorney discipline proceeding. Thus, we are
unpersuaded by Basinger’s reliance on Rand, as well as his conjecture that, in Rand, there
was no indication that the lawyer’s conduct had gained “public notoriety[.]”
As he does with Rand, Basinger misinterprets Attorney Grievance Comm’n v. Link,
380 Md. 405, 429, 408-13, 844 A.2d 1197, 1211-12, 1199-1202 (2004), in which this Court
held that a lawyer did not violate MLRPC 8.4(d) by yelling at an employee of the Motor
Vehicle Administration, and concluded that a lawyer violates MLRPC 8.4(d) through
“purely private conduct” only if the conduct “is criminal or so egregious as to make the
harm, or potential harm, flowing from it patent[.]” Basinger is mistaken in apparently
assuming that, in Link, by “private,” this Court meant “not known or intended to be known
publicly.” Five circumstances establish that, in Link, by “private,” this Court meant
“unrelated to the practice of law.”
First, in Link, id. at 428, 844 A.2d at 1211, this Court explained that the lawyer’s
conduct was “private” 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. Indeed,
the [lawyer] resisted informing the [employee] that he was a lawyer.”
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Second, in Link, id. at 428, 427, 844 A.2d at 1211, 1210, in distinguishing Attorney
Grievance Comm’n v. Childress, 360 Md. 373, 385-86, 758 A.2d 117, 123 (2000), this
Court acknowledged that, in Childress, the lawyer engaged in “purely private” conduct—
i.e., conduct that was “outside his . . . role as a lawyer[.]”
Third, in Link, 380 Md. at 421, 844 A.2d at 1207, this Court distinguished multiple
cases, including Alison, 317 Md. 523, 565 A.2d 660, on the ground that, in those cases,
“the offending conduct occurred during the actual litigation process or while interviewing
clients or others in connection with litigation or potential litigation.”
Fourth, on a related note, under Basinger’s interpretation of Link, Link and Alison
would be irreconcilable with each other. In Alison, 317 Md. at 540, 531, 565 A.2d at 668,
663-64, 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.” As Basinger
points out, the lawyer did so “in the presence of” multiple employees of the clerk’s office,
id. at 531, 565 A.2d at 663; thus, the lawyer’s conduct was not “private” in the sense of
“not known or intended to be known publicly.” In Link, 380 Md. at 429, 408-13, 844 A.2d
at 1212, 1199-1202, this Court held that a lawyer did not violate MLRPC 8.4(d) by yelling
at an employee of the Motor Vehicle Administration. Obviously, every office of the Motor
Vehicle Administration contains several customers at nearly every office hour, and it is
extremely dubious that none of those customers heard the lawyer’s yelling. Indeed, the
lawyer testified that the employee “was incredibly ‘rude’ to three customers who were in
line before” him, thus indicating other customers could hear any conversations with the
employee. Id. at 412, 844 A.2d at 1201. Accordingly, the lawyer’s conduct in Link, like
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the lawyer’s conduct in Alison, was not “private” in the sense of “not known or intended
to be known publicly.”
Fifth, in Attorney Grievance Comm’n v. Hall, 408 Md. 306, 330-31, 969 A.2d 953,
967 (2009), writing for this Court, Chief Judge Robert M. Bell—who also authored this
Court’s opinion in Link—explained that, in Link, 380 Md. at 429, 844 A.2d at 1211-12,
“we concluded that conduct, in the private world of attorneys, unrelated to actual litigation
situations, is only prejudicial to the administration of justice when such purely private
conduct is criminal or so egregious as to make the harm, or potential harm, flowing from
it patent[.]”
Thus, in Link, by “private,” this Court meant “unrelated to the practice of law.”
Accordingly, Link is not dispositive where (as here) a lawyer engages in conduct that is
related to the practice of law.
In sum, applying the objective standard that this Court articulated in Saridakis, we
conclude that Basinger’s conduct—in his capacity as Keys’s lawyer, putting into letters
numerous insults (including the obscene, sexist word “c[**]t”) that were aimed at the
letters’ recipient (his client, Keys)—would negatively impact “[a] reasonable member of
the public[’s]” perception of the legal profession. Thus, Basinger violated MLRPC 8.4(d).
(C) Sanction
In the event this Court sustains the exception, the Commission recommends that we
reprimand Basinger. Basinger, of course, does not recommend a sanction.
In McDowell, 439 Md. at 45-46, 93 A.3d at 722-23, this Court stated:
This Court sanctions a lawyer not to punish the lawyer, but instead to
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protect the public and the public’s confidence in the legal profession. This
Court protects the public by: (1) deterring other lawyers from engaging in
similar misconduct; and (2) suspending or disbarring a lawyer who is unfit
to continue to practice law.
In determining an appropriate sanction for a lawyer’s misconduct, this
Court considers: (a) the duty violated; (b) the lawyer’s mental state; (c) the
potential or actual injury caused by the lawyer’s misconduct; and (d) the
existence of aggravating or mitigating factors.
Aggravating factors include: (a) prior attorney discipline; (b) a
dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple
violations of the MLRPC; (e) bad faith obstruction of the attorney discipline
proceeding by intentionally failing to comply with the Maryland Rules or
orders of this Court; (f) submission of false evidence, false statements, or
other deceptive practices during the attorney discipline proceeding; (g)
refusal to acknowledge the wrongful nature of the misconduct; (h)
vulnerability of the victim; (i) substantial experience in the practice of law;
(j) indifference to making restitution; and (k) illegal conduct, including that
involving the use of controlled substances.
Mitigating factors include: (a) the absence of prior attorney discipline;
(b) absence of a dishonest or selfish motive; (c) personal or emotional
problems; (d) timely good faith efforts to make restitution or to rectify
consequences of the misconduct; (e) full and free disclosure to the
Commission or a cooperative attitude toward the attorney discipline
proceeding; (f) inexperience in the practice of law; (g) character or
reputation; (h) physical disability; (i) a mental disability or chemical
dependency including alcoholism or drug abuse where: (1) there is medical
evidence that the lawyer is affected by a chemical dependency or mental
disability; (2) the chemical dependency or mental disability caused the
misconduct; (3) the lawyer’s recovery from the chemical dependency or
mental disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and (4) the recovery arrested the misconduct and
recurrence of the misconduct is unlikely; (j) delay in the attorney discipline
proceeding; (k) the imposition of other penalties or sanctions; (l) remorse;
and (m) remoteness of prior violations of the MLRPC.
(Brackets, citations, footnote, and internal quotation marks omitted).
Here, as to the duty violated and Basinger’s mental state, Basinger violated MLRPC
8.4(d) by intentionally mailing to Keys letters in which he called her, among other things,
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“A TRUE C[**]T[.]” As to the potential or actual injury that Basinger’s misconduct
caused, Basinger’s misconduct was so egregiously unprofessional and demeaning to Keys
that, viewed objectively, it would negatively impact the public’s perception of the legal
profession.
We note three aggravating factors: (1) a pattern of misconduct, as Basinger engaged
in a pattern of numerous insults that spanned three letters; (2) refusal to acknowledge the
wrongful nature of the misconduct; and (3) substantial experience in the practice of law, as
Basinger has been a member of the Bar of Maryland for more than thirty years. We note
one mitigating factor: the absence of prior attorney discipline.
We agree with the Commission that the appropriate sanction for Basinger’s
misconduct is a reprimand, which should suffice to deter other lawyers from
communicating with their clients in the egregiously unprofessional manner that Basinger
employed.
For the above reasons, we reprimand Basinger.
IT IS SO ORDERED; RESPONDENT SHALL PAY
ALL COSTS AS TAXED BY THE CLERK OF
THIS COURT, INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO MARYLAND
RULE 16-761(b), FOR WHICH SUM JUDGMENT
IS ENTERED IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST CARL
STEPHEN BASINGER.
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