The Third Strike Leaves Court “Beyond Satisfied”

The Maryland Court of Appeals has issued an opinion summarized in this headnote

Court of Appeals disbarred lawyer who, among other things, engaged in sending sexually explicit text messages and informed woman that “sugar daddy” would pay her to watch her masturbate, and who previously had been disciplined on two occasions for engaging in misconduct. Such conduct violated Maryland Lawyers’ Rule of Professional Conduct (“MLRPC”) 8.4(d) (Conduct that is Prejudicial to the Administration of Justice).

The unsavory details

Jeffrey S. Marcalus (“Marcalus”), Respondent, a member of the Bar of Maryland, texted Lindsay Dudley (“Dudley”)—a self-represented party in litigation in which Marcalus represented the opposing party—to, among other things, request a photograph of Dudley in a bathing suit; discuss whether Dudley would be willing to use “toys” with a “sugar daddy”; and state that he “usually wake[s] up with” an erection. After Dudley engaged counsel, her attorney filed a complaint against Marcalus with the Attorney Grievance Commission (“the Commission”), Petitioner.

“It was a joke” did not work as a defense

We are beyond satisfied that, even if Marcalus and Dudley engaged in consensual conduct and believed that their statements to each other were a “joke,” given that Dudley was a self-represented party in litigation in which Marcalus represented the opposing party, Marcalus’s “sexting” and suggestive conduct would negatively impact the perception of the legal profession of “a reasonable member of the public[.]”

The court noted that the attorney had been disciplined on two prior occasions

 The only mitigating factor (remorse) falls woefully short of warranting a lesser sanction. Marcalus’s remorse is too little, too late. Marcalus should have realized that his misconduct was wrongful before, not after, he engaged in it for the third time. Plainly put, in this instance, “three strikes and you’re out.”

(Mike Frisch)