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In re Member of Bar of Supreme Court of State of Delaware

Supreme Court of Delaware

March 14, 2018

IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT OF THE STATE OF DELAWARE: JOSEPH A. HURLEY, Respondent.

          Submitted: January 10, 2018

         BPR Case Nos. 112751-B and 113087-B

          Daniel F. Wolcott, Jr., Esquire Chair

          Jessica Zeldin, Esquire

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en banc.

          ORDER

          PER CURIAM

         This 14th day of March 2018, upon consideration of the Report and Recommendation of the Board on Professional Responsibility ("the Board") filed on September 20, 2017, [1] the Office of Disciplinary Counsel's ("the ODC") objections, and the response and reply thereto, it appears to the Court that:

         (1) The respondent, Joseph A. Hurley, was admitted to the Delaware Bar in 1970 and has practiced primarily as a criminal defense lawyer. In August 2016 and December 2016, the ODC filed two separate petitions for discipline against him. The first petition charged Hurley with one count of violating Rule 4.4(a)[2] of the Delaware Lawyers' Rules of Professional Conduct for making antagonistic, inflammatory and demeaning remarks to and about a former client in three separate letters sent to the ODC and his former client during the course of the ODC's investigation of a disciplinary complaint that the former client had filed against Hurley. The second petition charged Hurley with one count of violating Rule 4.4(a) and two counts of violating Rule 8.4(d)[3] for making disparaging or demeaning remarks to and about four different Deputy Attorneys General ("DAGs") in various correspondence to the DAGs and, in one instance, to the Superior Court during the course of Hurley's representation of several different clients.

         (2) The Board held a consolidated hearing on the two petitions on March 28, 2017. As to Case No. 112751-B, the record reflects that the ODC received a complaint about Hurley from his former client in February 2016. The complaint raised two issues. The ODC wrote to Hurley and requested him to respond to the first issue only, which asserted that Hurley had interfered with the client's right to a speedy trial. Hurley responded by sending three different letters to the ODC, copies of which were sent to his former client. The letters included material beyond the speedy trial issue and were sarcastic and insulting.[4]

         (3) In support of its complaint in Case No. 113087-B, the ODC presented testimony from multiple DAGs and former DAGs. The testimony established that, on several past occasions, senior DAGs had contacted Hurley about his inappropriate and unprofessional correspondence with junior, female DAGs. In 2007, the then-State Prosecutor wrote to Hurley and asked him to stop making personal, sexual or disparaging remarks to other DAGs. Hurley responded to that letter, sending copies to sixty-seven other DAGs, accusing the State Prosecutor of censorship. Hurley asserted that he had read the Rules of Professional Conduct and concluded that his brand of humorous correspondence was not unethical under the Rules.

         (4) Hurley also stated that, although he would maintain a professional relationship with the complaining DAG, he would continue to exercise his "constitutional right of free expression." Despite his promise to maintain a professional relationship with the complaining DAG, Hurley later sent her a copy of a letter in which he stated that 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."[5]

         (5) The ODC also presented testimony from four other DAGs about more recent correspondence and interactions with Hurley, which led to the filing of the ODC's complaint. In one letter, Hurley suggested that the female DAG had no "brain wave activity." The letter included crude musings about the DAG's plans for Valentine's Day with her husband. In another letter, Hurley stated to a male DAG, "You are outmanned and outgunned. I am Catholic. You're not. You're a young Jewish man, I suspect." The letter went on to tell the DAG that he should be "a goat herder in Lebanon." In another letter to the same DAG, Hurley called him, "a certified asshole" and told him that if the DAG got "anybody to accept his [crackpot ideas] as Torah, then I will abide."

         (6) Another DAG testified about several different emails Hurley had sent to her that included crude and sexualized comments, including one email that stated, "You are extraordinarily attractive! I'm sure that you stir the 'drums of passion' for all who see you today." In another email, Hurley called her "another beautiful, but arrogant female." A fourth DAG testified about an email from Hurley that referred to her as "Kurvacious" and "Kooky." In another instance, the DAG testified that Hurley sent an email to a Superior Court Commissioner, in response to the DAG's request for a continuance because of a teaching commitment, stating "beyond [yoga], I cannot fathom anything where she [the DAG] would have sufficient expertise to teach."

         (7) After considering the evidence and the parties' post-hearing memoranda, the Board unanimously found that the ODC had proven three of its four counts by clear and convincing evidence. The Board concluded that Hurley's letters to and about his former client violated Rule 4.4(a) because the specific language in the letters demeaned his former client's mental state and personality and served "no substantial purpose other than to embarrass, delay or burden a third person."[6] The Board also concluded that Hurley's disparaging and demeaning correspondence to the four DAGs violated Rule 4.4(a). Finally, the Board concluded that Hurley's disparaging remark about opposing counsel in his correspondence to the Superior Court Commissioner was "prejudicial to the administration of justice" in violation of Rule 8.4(d).

         (8) On the count that was found lacking, the Board concluded that Hurley's demeaning correspondence to the DAGs, which was only sent to them and was not copied to the court, was not "conduct prejudicial to the administration of justice" in violation of Rule 8.4(d). More particularly, the Board concluded that the correspondence was private and had no effect on any case and thus had no "direct impact on the administration of justice" because it did not burden the court.

         (9) In considering the appropriate sanction, the Board found that Standards 6.33[7] (public reprimand) and 7.2[8] (suspension) of the ABA Standards for Imposing Lawyer Sanctions were both relevant.[9] Ultimately, the Board rejected the ODC's argument that Hurley's misconduct was knowing. Instead, the Board found that Hurley had engaged in such ribald "humor" over the years and "had no conscious awareness that [such] conduct would violate the Rules."[10] Thus, the Board concluded that Hurley's state of mind was merely negligent. After weighing the aggravating and mitigating factors, the Board accepted the ODC's recommendation of a public reprimand with a requirement that Hurley pay for and complete a professionalism program approved by the ODC.

         (10) In its objections to the Board's Report, the ODC contends that the Board erred in concluding that Hurley's demeaning correspondence to opposing counsel, which was not copied to the court, was not "prejudicial to the administration of justice" under Rule 8.4(d). The ODC also argues that the Board erred in finding that Hurley's state of mind was merely negligent, rather than knowing. The ODC does not object to the Board's recommended sanction.

         (11) Hurley filed a "response" to the ODC's objections. In his response, Hurley claims that he did not read the ODC's objections. He purports to offer no substantive response other than to "accept responsibility as I must."[11]

         (12) The ODC filed a reply, contending that Hurley's acceptance of responsibility and expressions of remorse are disingenuous, as evidenced by a 23-page document written by Hurley, entitled "My Struggle, also known as "Hurleygate."[12] Hurley apparently sent this document to many members of the Delaware Bar and Bench in May 2017, after the Board held its hearing in March but before the Board issued its Report in September. In that document, Hurley calls the ODC the "Office of Disciplinary Censorship, " refers to the disciplinary proceedings against him as an "attorney court-martial, " and refers to the allegations of misconduct as "unfair and misdirected." He 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." He also suggested that the ODC has "an enemies list" and acted against him simply because the ODC does not like him.

         (13) The Court has carefully considered the parties' filings and the Board's Report. Although the Court finds the Board's recommendations helpful, we are not bound by them.[13] Because we have the inherent and exclusive authority to discipline members of the Delaware Bar, [14] we have an obligation to review the record independently and determine whether there is substantial evidence to support the Board's factual findings.[15] The Board's conclusions of law are subject to de novo review.[16]

         (14) The ODC's first objection is that the Board erred in rejecting the fourth count of its complaint by interpreting "conduct prejudicial to the administration of justice" under Rule 8.4(d) too narrowly. The Board concluded that Hurley's inappropriate emails to opposing counsel were not prejudicial to the administration of justice because they were "private" and did not directly burden the trial court or affect the outcome of pending litigation.

         (15) We accept the Board's conclusion that the communications sent to opposing counsel did not violate Rule 8.4(d). Without question, the charged misconduct violated Rule 4.4(a) because the offensive portions of Hurley's unprofessional correspondence had "no substantial purpose other than to embarrass, delay or burden" opposing counsel. As to Rule 8.4(d), however, we accept the Board's conclusion, which was based upon the testimony of the DAGs, that the evidence did not clearly show that the letters, as offensive and inappropriate as they were, had an actual impact on the administration of justice. Our acceptance of the Board's conclusion on this point in this case should not be read as the adoption of a rule that such conduct, which is entirely unacceptable, could never support a Rule 8.4 violation upon a showing that the conduct affected the performance of opposing counsel or had some other distinct impact on the judicial process.

         (16) The ODC's second argument is that the Board erred in concluding that Hurley's misconduct was not knowing but merely negligent. On this point, we agree with the ODC. "Knowing" misconduct may be inferred from the circumstances of a given case.[17] In the disciplinary context, this Court has equated willful ignorance of the law as knowledge.[18]

         (17) The ODC presented evidence that Hurley had been admonished on earlier occasions by senior DAGs about the inappropriate and offensive nature of his correspondence to more junior deputies in the office. Hurley, therefore, was on notice that his conduct was deemed offensive, which undermines the Board's finding that Hurley "did not act with a conscious awareness of the nature of the attendant circumstances"[19] and did not know that his conduct would violate the Rules. Hurley's excuse that his "arrogant and overbearing persona was known to all and appreciated by some"[20] does not transform-as Hurley seems to suggest-his patently offensive messages into acceptable attempts at humor. Simply put, Hurley may not have agreed that his unprofessional correspondence violated the Rules, but he should have known that it did. The record presented supports a finding of knowing misconduct.

         (18) Even though we disagree with the Board's finding that Hurley's misconduct was merely negligent, we nonetheless accept the Board's recommendation of a public reprimand with conditions in this case. The ODC argued to the Board that Hurley's conduct was intentional, but it still recommended a public reprimand to the Board. The Board, having heard the testimony of the DAGs regarding the impact of the offensive communications and considering the course of communications between Hurley and the DAGs through the years, accepted the ODC's recommended sanction, and the ODC did not object to that recommendation in this Court Under the circumstances, although we would have considered and might have accepted a more severe sanction had one been recommended, we accept the Board's recommendation of a public reprimand with conditions.

         NOW, THEREFORE, IT IS ORDERED that the Board's Report and Recommendation is ACCEPTED IN PART AND REJECTED IN PART. The Court hereby publicly reprimands Joseph A. Hurley and imposes the following conditions:

a) Hurley shall, within 6 months of the date of this Order, certify that he has successfully completed a training program to be provided by an experienced, qualified Human Resource professional, chosen by the ODC, on the subjects of professionalism, respectful treatment of colleagues and opposing counsel, and the need to refrain generally from inappropriate discussions of a sexual or religious nature when communicating, orally or in writing, in the course of practicing law;
b) Hurley shall pay the costs of the training program; and
c) Hurley shall pay the costs associated with the ODC's investigation of this matter.

         BOARD REPORT AND RECOMMENDATION

         This is the report of The Board on Professional Responsibility of the Supreme Court of the State of Delaware (the "Board") setting forth its findings and recommendations in the above captioned matter.

         The members of the panel of the Board (the "Panel") are Deborah L. Miller, Ph.D., Jessica Zeldin, Esquire and Daniel F. Wolcott, Jr., Esquire (the "Chair"). The Office of Disciplinary Counsel (the "ODC") was represented by Jennifer-Kate Aaronson, Esquire and Kathleen M. Vavala, Esquire. The Respondent Joseph A. Hurley, Esquire appeared Pro Se.

         A hearing was held on March 28, 2017. After receiving the transcript, the parties filed post hearing memorandum. ODC filed its opening memorandum on May 26, 2017, Respondent filed his memorandum on June 30, 2017 and ODC filed its reply on July 21, 2017.

         I. BOARD CASE NO: 112751-B

         A. Procedural Background

         The ODC filed a Petition for Discipline on August 11, 2016. In that one count Petition, the ODC alleged a violation of the Delaware Lawyers' Rule of Professional Conduct (the "Rules") 4.4(a). Rule 4.4(a) provides u[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person...." On August 31, 2016, Respondent filed his answer to the Petition denying that he violated Rule 4.4(a).

         B. Findings of Fact

         Respondent has been a member of the bar of the Supreme Court of Delaware since 1970. At all times relevant to the Petition, he was engaged in the private practice of law, primarily as a criminal defensive lawyer. Petition ¶1. Rock Peters was arrested for assault third degree and resisting arrest(Transcript 226[1]). He retained Respondent to defend him. Trial was scheduled several times in the Court of Common Pleas (Tr. 227). Respondent, as part of his trial strategy, decided to subpoena the New Castle County Police training manual shortly before trial so that the defense he planned would not be obvious to the prosecution (Tr. 230). He therefore wanted to make sure the trial would proceed on the day it was scheduled. Respondent knew, given how the court schedules matters, that the trial scheduled for December 2015 would not occur. Mr. Peters wanted his trial promptly and, when the trial was continued from the December 2015 date, called Respondent in open court profane names (Tr. 229). Respondent determined at that time he would seek to withdraw as Mr. Peters counsel. He wrote Mr. Peters a letter explaining his position (Tr. 231). Shortly thereafter, Respondent received a letter dated February 25, 2016 (Ex. L)[2] from the ODC enclosing Mr. Peters' complaint (Tr. 231, 235). The complaint included two items: first, that the Respondent had denied Mr. Peters his right to a speedy trial and, second, that Mr. Peters claimed that he had met a former employee of Respondent who had resigned because Respondent demanded acts of sexual perversion from her (Tr. 231-32). The letter from ODC asked that Respondent confine his response to just the first issue. Respondent responded by sending ODC and Mr. Peters letters regarding the Complaint (Exs. M, N and O) that included material beyond the speedy trial issue.

         Respondent explained the response was necessary for several reasons. First, he wanted to reply to the defamatory remarks and, second, that Respondent perceived Mr. Peters as a bully, who if unchecked, would assume that silence indicated acquiescence (Tr. 232). The letters included remarks regarding Mr. Peters' mental status, conveyed in a sarcastic manner (Tr. 233-34). Portions of the letters are as follows:

From the letter dated March 1, 2016 (Ex M):
Although I am not required, indeed, it is not anticipated that I would response to your complaint, directly, I follow my policy of making another person aware when I criticize that person to a third party...
I want to congratulate you on authoring the most invective-laden ODC complaint I have witnessed. It is somewhat amazing that because I did not do what you wanted me to do, even though it couldn't have happened had I performed as expected because of circumstances beyond my control, you have launched an attack while labeling me unethical, violating the attorney/client relationship (I kind of missed where I did that), nearly criminal and certainly deserving of disbarment because I didn't follow your instructions to say "We demand trial" To me, it seems kind of harsh to disbar someone for such a trivial matter.
I would ask a favor of you. Whenever you next speak to your therapist (I assume you have a therapist) ask him whether or not your fusillade of words launched against me was a result of your perception of my rejecting you or simply your inability to accept anything but complete control of everything around you. Perhaps it was combination of both. I find that interesting.
So that you don't embarrass yourself any more than you already have, I will tell you in your attempt to discredit me by giving contact information to a "victim" (?) of my "vile" sexual perversions you might want to know that the individual to which you refer did not "quit". She was fired!...
Obviously you have your opinions and I seek not to change them because you are probably happy in viewing me as despicable as you can in order to vindicate yourself. I understand that because my previous potential career was clinical psychology. I simply tell you that you "shot yourself in the foot", by referencing that incident, and which, by the way, had nothing to do with the complaint, did it? Since it already had been discredited and your reliance upon that adds to the discrediting of your complaint.
Your best chance of being successful in a criminal court situation was with me. Maybe you will find out the hard way. I could care less one way or the other what happens in your case, given this latest salvo, but I would like you to remember, in the event that you are found guilty, the words "What have I done?" as you pay the price.
Finally, and I will bother you no longer, please write down the list of miscalculations and misjudgments and deficiencies and insufficiencies that my case preparation contained as indicated by whatever attorney ultimately represents you. Most certainly, there should be many given the vibrant complaint you have filed.
.. .It is not my place to judge you nor, in case you haven't understood that, it's not your place to judge me. You have crossed the boundary and that is your prerogative as an individual. When you look in the mirror ask yourself how one who literally "grasped the beads of the Rosary" embraces the faith seeking the infusion of Godliness, acts in a manner that you have acted. Just a suggestion, but it certainly won't surprise me that you ignore any suggestion (Ex M) In a letter dated March 7, 2016 and sent to ODC copying Mr. Peters Respondent I make.

         From the letter dated March 7, 2016 sent to the ODC and copying Mr. Peters (Ex. N):

[(When informed of the new trial date)].. .Peters was directed to sign a document acknowledging the requirement that he appear at the later date and.... Outside the presence of, myself, loud enough for at least two attorneys, who were situated probably four feet away from the spectator's gallery, to hear him utter a rather unpleasant characterization of me while describing me as a "F____ing A___H___"! Both attorneys reported it to me and found the incident humorous.)

         From the letter dated March 11, 2016 also sent to ODC with a copy to Mr. Peters (Ex O):

[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."
ODC never issues responses to baseless complaints that are critical of the complainant. At best, there is some kind of generic, neutral verbiage that announces that no action will be taken. Who defends the attorney? No one! 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.
Mr. Peters was adamant regarding having the trial scheduled promptly. He wasn't interested in a successful effort as much as he was a prompt resolution. Well, without seeming particularly strident, he got it! You will find enclosed an email from the prosecutor [(the email from the prosecutor advised Peters was convicted of Resisting Arrest)].
Had [Peters] concentrated his effort in cooperating with someone who knew what he was doing instead of deciding that he was the "boss of bosses", success may have occurred.
Although I know that I am subject to criticism for "telling it like it is", Mr. Peters got what he deserved and now he has to live with it because a very profitable civil lawsuit potential has just "gone down the drain."
I am asking that this document be placed in the file and with the understanding that you are under no obligation to accommodate my wishes.

         II. BOARD CASE NO. 113087-B

         A. Procedu ...


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