Lawyer’s Sexual Emails Aren’t Funny, Del. High Court Says

A criminal defense lawyer’s sexually provocative emails to prosecutors “crossed the line” and resulted in a public reprimand from the Delaware Supreme Court Mar. 14.

Joseph A. Hurley’s comments ranged from explaining how he exposed himself to girls at movie theaters, postulating about the sex life of a female prosecutor one Valentine’s Day, directing “insulting” religious references at a Jewish male prosecutor, and calling another female prosecutor “beautiful, but arrogant.”

Lawyers must remember that “humorous” emails can lead to discipline if they cross the bounds of basic decency, the case makes clear.

The Office of Disciplinary Counsel filed a petition for discipline in August 2016 alleging violations of Delaware Lawyers’ Rule of Professional Conduct 4.4(a) (can’t embarrass, delay or burden another) based on letters Hurley sent to a former client. In December 2016, ODC filed a second petition for discipline for emails Hurley sent to four different deputy attorneys general, alleging violations of Rules 4.4(a) and 8.4(d) (conduct prejudicial to the administration of justice).

After a hearing on both petitions, the Board on Professional Responsibility issued a report and recommendation where it found violations of both rules and recommended a public reprimand with conditions. The full Delaware Supreme Court, in an unsigned opinion, generally agreed and publicly reprimanded Hurley. The court also required that he pay for and complete professionalism training, and pay the costs of disciplinary counsel’s investigation.

Bedroom Humor

Joseph A. Hurley was admitted to the Delaware bar in 1970 and practices criminal defense.

In 2007, the then-state prosecutor asked Hurley to “refrain from making personal, lewd, sexual, religious, disparaging and/or demeaning remarks in correspondence to Deputy Attorney Generals,” the report said. Hurley objected to “what he termed censorship and indicated that he would continue exercising his ‘constitutional right of free expression no matter who likes it.’”

Despite his “promise to maintain a professional relationship with the complaining DAG,” the court said Hurley sent her a copy of a letter stating how “he used to expose himself ‘to girls using a popcorn box in a movie theater and while holding it in my lap and having my thing surrounded by popcorn,’” the court said.

The report said that on Valentine’s Day 2012, Hurley sent “DAG 1F” a communication containing the following:

“We, anonymous, have successfully hacked into the brain of [DAG 1F] and do certify that the enclosure represents the brain wave activity intercepted on February 14, 2012.

“Here it is Valentine Day already. I sure want to make some plans for that, but I have to analyze this Haughton matter and put it to rest. Joe Hurley is lecturing me, and I want to shut his mouth for once and for all. Hmmm! Let me think.

“Oh, I remember. Hmmm! This is going to be our first Valentine’s Day together after the baby. I wonder if it’ll be the same? Will the same excitement be there? Will the same anticipated eagerness be there? I wonder. I know I have seen on many occasions where it “gets old” with others. I’m not going to let that happened to me. I guess I better stop by Victoria’s Secret after work and get something to wear for when he comes home tonight. I want to push up and push in. I’ll find something. That’ll do it. Those 5-inch heels that he loves so much and new lingerie . . . — oh, back to Haughton.”

Hurley then discusses the evidence but then says "....Aah, back to reality — I hear him at the door. ‘Honey, I’m in the bedroom — WAITING.’”

DAG 1F wasn’t amused and thought Hurley was calling her an idiot, the report said. She never discussed the sexual topics with Hurley and found the communication to be “insulting” and “derogatory.”

‘Crackpot’

“DAG 2M” received correspondence in 2014 he found to be “inappropriate, offensive or insulting” because it commented on his Judaism, referenced masturbation, and threatened to get him fired. In 2015, DAG 2M received an email from Hurley calling him a “certified asshole!”

In that same email, Hurley told DAG 2M if he got “anybody to accept his [crackpot ideas] as Torah, then I will abide.”

Several emails Hurley sent, either to “DAG 3F” or a male deputy, contained sexual connotations that DAG 3F thought were “outrageous”, including the following statement in a July 2016 email: “Let me begin by stating the obvious. You are extraordinarily attractive! I’m sure that you stir the ‘drums of passion’ for all who see you today.”

In another July email, he called DAG 3F a “beautiful, but arrogant, Greek female,” the report said.

In April 2016, Hurley sent “DAG 4F” a memo and referred to her as “KKK”, which he translated "[in]to sexual comments about her looks or mental state,” the report said. DAG 4F was not amused.

In June 2016, DAG 4F had a conflict with a motion hearing scheduled because she was teaching a class at the police academy. Hurley wrote the presiding commissioner and presumed that DAG 4F was teaching a yoga class because "[b]eyond that, I cannot fathom anything where she would have sufficient expertise to teach.”

‘Punching Bag 101'

Hurley’s client, Rock Peters, was set for trial in December 2015. That date was rescheduled, and Peters was upset about losing the trial date and called Hurley profane names in open court. Hurley sought to withdraw and sent Peters a letter about it. Peters then filed a complaint with ODC alleging that Hurley denied him his speedy trial rights, and claiming that Hurley’s former employee resigned because Hurley “demanded acts of sexual perversion from her.” ODC asked Hurley to respond only to the speedy trial allegation, but he responded to both allegations.

Hurley’s letters to ODC and Peters “included remarks regarding Mr. Peters’ mental status, conveyed in a sarcastic manner,” the board’s report said. In one letter Hurley made the following statements:

  •  "[T]he System is ‘rigged’ insofar as any person who is represented by an attorney has full license to bring a complaint against an attorney however meritless and an investigation results. I would suggest that American law schools have a course that is designated as ‘PUNCHING BAG 101.’”
  •  “Pity the poor attorney who has the bad luck to represent 20 ‘nutballs’ and, therefore, has 20 complaints filed against him or her.”
  •  “I cannot tolerate the Rock Peters ‘of the world who simply ‘take shots’ knowing there is no ‘downside’ to their baseless complaints.”

 

Road to Reprimand

The board found that all communications violated Rule 4.4(a), that the yoga-related communication sent to the court about DAG 4F violated 8.4(d), but that none of the communications sent only to the DAGs violated 8.4(d).

The board rejected ODC’s argument that Hurley’s conduct was “knowing” and found him only to have been negligent. ODC recommended a public reprimand, which the board approved, in addition to requiring that Hurley complete a professionalism program.

ODC filed objections to the board’s report alleging error in not finding that Hurley’s correspondence to opposing counsel also violated 8.4(d). ODC also objected to the board’s finding that Hurley’s state of mind was negligent rather than knowing.

Hurley responded, but offered nothing substantive.

The court said in ODC’s reply it argued that a 23-page document Hurley sent to lawyers and judges before the board’s report was issued, entitled “My Struggle, also known as Hurleygate,” showed his “acceptance of responsibility and expressions of remorse” to be “disingenuous.” The court said Hurley “compared the board’s proceedings to ‘The Salem Witch (Warlock) Trial,’ referred to his disparaging remarks as ‘all in fun,’ and called the recipients of his demeaning comments ‘so-called victims.’”

The Delaware Supreme Court generally agreed with the board’s findings and conclusions, except it found that Hurley’s conduct was knowing. Even though the court “would have considered and might have accepted a more severe sanction had one been recommended,” it accepted the board’s recommendation of a public reprimand with conditions.

Embarrass, Delay, Burden

The board found that Hurley’s communications that addressed Peters’ "mental state and general personality had no substantial purpose related to the reason [Hurley] was asked to respond to Peters complaint.” Because Hurley was representing himself at the time, he was subject to Rule 4.4(a), which prohibits lawyers from using means “that have no substantial purpose other than to embarrass, delay or burden a person.”

While the board recognized Hurley’s communication may have had a substantial purpose—in defending against accusations of sexual perversion—it said “the specific language used had no substantial purpose.”

Regarding all communications with the DAGs and the commissioner, the board found clear and convincing evidence of violations of Rule 4.4(a). The board recognized that "[e]ven when a lawyer’s communications as a whole have a legitimate substantial purpose, they can still violate Rule 4.4(a) if a part of the communication lacks a substantial purpose and has the effect of ‘embarrass[ing], delay[ing] or burden[ing] a person.’” Here, the board said the “communications at issue rise to the objective level of embarrassing and burdening.”

“Respondent’s claimed purpose in writing the emails to the DAGs was to communicate with them concerning his clients and to do it in a way which he believed was humorous or witty is of no avail,” the board said.

The court said “without question,” the correspondence to the DAGs violated Rule 4.4(a).

Prejudicial, Knowing

The board found that the email about DAG 4F teaching yoga that was sent to the court violated 8.4(d), even without any “testimony that it disrupted the Court.”

But the board did not find that the communications sent only to the DAGs violated 8.4(d), especially since no one testified the communications had any impact on their cases. The court accepted the Board’s conclusion that, despite being “offensive and inappropriate,” there was no “actual impact on the administration of justice.”

“In the disciplinary context, this Court has equated willful ignorance of the law as knowledge,” the court said.

The court said that the prior warnings about Hurley’s “inappropriate and offensive” emails “undermines the Board’s finding that Hurley ‘did not act with a conscious awareness of the nature of the attendant circumstances.’” Hurley “should have known” that his conduct violated the rules, even if he didn’t agree, the court said.

The court said that the record “supports a finding of knowing misconduct.”

The case is In re Hurley , 2018 BL 86645, Del. en banc, 2017383, 3/14/18 .

To contact the reporter on this story: Mindy L. Rattan in Washington at mrattan@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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