Zoom Comments And CLE Email Draw Non-Disciplinary Admonition

The Grievance Commission of the Maine Board of Bar Overseers imposed a non-disciplinary admonition of an attorney

Two allegations arise from comments made by Respondent during a June 2023 Aroostook County Unified Criminal Zoom docket call.

Attorney M.D. overheard Respondent advising his client on the mechanics of the zoom docket call proceeding. As he finished his explanation, Respondent instructed his client to “mute herself” until her case was called. He then stated something akin to, “I have always wanted to say that to a woman.” Per M. D., Respondent’s client appeared to think the statement was “funny” and joked about it.

During the same June 23, 2023, Zoom docket call, attorney A.M. was counsel for an in custody female defendant. She observed Respondent speaking to her client at the jail who appeared remotely. Respondent made a statement to the defendant like, “Oh you look really nice at the jail: you must look even better with makeup on.” A. M. did not know that the speaker was an attorney, and she questioned whether the speaker and her client knew each other due to the level of familiarity displayed. Since A.M. did not know at that time that the Respondent was an attorney, it is unclear whether the in-custody defendant knew of the Respondent’s role at the docket call. Attorney M. D., who also observed this interaction, said the inmate looked “incredibly uncomfortable,” did not respond, but let out a “shallow laugh.” Per M. D., the inmate continued to appear visibly uncomfortable. However, it is impossible to ascertain, without following up with the client, whether her discomfort was due solely to her then-present incarceration and pending charges circumstances or was exacerbated by the comments made by Respondent.

Following the docket call, another female attorney reached out to A. M. and questioned the propriety of Respondent’s comments. It was then that A. M. learned of Respondent’s identity. Per A. M., the interaction was “weird,” and her client was “clearly very uncomfortable.” A. M. explained that she was “concerned” for her client because she was vulnerable and was previously a human trafficking victim. A. M. spoke with her client after the Zoom to ensure that she was okay. Her client said something to the effect of “‘ya, I’m fine, people say stuff all the time’.” Per A. M., her client appeared uncomfortable but thought the comment was intended as a compliment.

Attorneys A.M. and M.D. opined that Respondent’s conduct impacted the targeted individuals and third-party participants who observed the conduct; however, no statements were taken nor interviews conducted of the targeted individuals or the third-party participants.

On or about September 14, 2023, Respondent enrolled in an MCPDS sponsored live training event set to occur in Portland, Maine for the week of October 23 through October 27, 2023. The event was approximately two hours away from Respondent’s home.

About a month after registration, Respondent emailed MCPDS Training and Supervision Counsel, Attorney D. F., and asked if the program was still scheduled because he had expected to receive additional information about the training but had not. D. F. responded and confirmed that the training was still scheduled.

On Friday October 20, 2023, at 12:41 P.M. the training provider sent an email to attendees which included a link to course material. Thereafter, D. F. sent an email to all attendees which notified them that they should have received an email from the co-sponsor earlier in the day. Respondent emailed D. F. on Saturday October 21, 2023, at 3:32 P.M., informed her that the link to the materials did not work and expressed his hope that hard copies would be available at the training.

Respondent then sent an email to D. F. on Sunday, October 22, 2023, at 10:12 P.M. captioned “CLE materials”. He wrote as follows:

Hey, nothing is available so far and I have to leave my printer at 6AM to get there. WTF? Are you really that incompetent? Really? Man UP! If you need help. [sic] ask for it! I’m taking a week’s leave from my wife, my children, and my clients to do this, and you are AFC. Post the materials so we can print them before we have to get on the road at 6:AM [sic] tomorrow. ARE YOU DEAF?

Respondent signed the email, Markrk [sic] A. Perry, Esq.”

During the disciplinary matter, Respondent explained that he had experienced considerable stress in the days leading up to his communication with D. F. which included the passing of a family member during a time when he was trying to ensure that his office was prepared for his week’s absence at the MCPDS sponsored conference. Respondent justified his insistence on receiving written material based on his learning style and explained that he grew frustrated that he could not access the court material.

Respondent stated that he specifically requested that MCPDS provide the course evaluations which had to be completed for lawyers to obtain CLE credit and that this request was ignored. The communication reviewed in this investigation demonstrated that Respondent did not request course evaluations in his email communication with D. F. between September 14, 2023, and October 22, 2023. Instead, the first time this issue was raised was in an October 23, 2023, email to a different MCPDS attorney.

Respondent acknowledged that the content of the October 22nd email demonstrated that “the writer is unhinged.” In this regard he pointed to the fact that he referred to leaving his children in the email, but his youngest child is twenty-seven and lives in Windham, Maine. He also explained that it was unreasonable for him to expect to get the information and a response between Sunday night at 10:30 P.M. and 5:30 P.M. Monday morning. Moreover, Respondent alleged that he “still had no memory of sending the email.”

Despite the foregoing, Respondent stated that his “outburst had nothing to do with Rule 8.4(g)” and that he was not aware of a Bar rule addressing “psychotic episodes.” Respondent noted that the communication was “regrettable” but not directed specifically at D. F. He explained that his communication was instead intended for whatever individual sent the faulty link to material and noted that the race or gender of the sender was irrelevant. Per Respondent, the phrase “Man up” was “gender neutral.” Respondent further stated that “AFC” was meant to refer to the American Football Conference, but that if he were “lucid” he would have written “AWOL (absent without leave).” He also noted that D. F. “accosted him angrily” when he arrived at the seminar and recounted that he looked at her as though she had two heads because he didn’t recall sending the email.

Contrary to Respondent’s assertions, D. F. believed that Respondent’s email was targeted based on her gender. D.F. pointed to her belief that given the context, the phrases “Man up” and “AFC” were gendered. Per D. F., she did not know what “AFC” meant but did not believe it was intended to be the American Football Conference. She explained that she looked up the term after she received the email and believed it to be an insult that was sexual in nature. The panel was not provided with any information to corroborate her belief.

D. F. felt that Respondent’s conduct was highly inappropriate, and she questioned Respondent’s state of mind, given the time of night that he sent the email, the content of the communication, and the fact that he spelled his own name wrong. D. F. confirmed that she spoke with Respondent in person at the October 23, 2023, training event. She indicated that she approached Respondent and questioned him about his email because he had said “some pretty offensive statements” and she was “trying to figure out where that came from.” Per D. F., although Respondent first denied sending the email to her, D. F. challenged this by reminding Respondent that he sent the message directly to her email address. Respondent also denied making any offensive statements. There was no evidence to support Respondent’s assertion that Attorney D. F. “accosted” Respondent “angrily,” and D. F. did not explain their interaction in such a way.

D. F. explained that Respondent continued to state that MCPDS was at fault for not sending material, telling her something akin to “that’s not the way to run a train station,” when she reiterated that MCPDS had no control over material distribution. D. F. explained that after she spoke to Respondent her concern became his refusal to acknowledge his conduct and his effort to “doubled [sic] down” and stand by the fact that he thought that MCPDS was in the wrong for failing to send course materials.

On November 7, 2023, Respondent sent D. F. an email wherein he stated, “Sorry (very) to have offended you” and went on to suggest ways he might “make it up somehow. (Baby-sitting, chainsaw work, moving …?).” D. F. explained that she viewed Respondent’s apology as further targeted towards her gender, given that it assumed Attorney D. F. had children and that Attorney D. F. would need assistance doing physical labor, or tasks such as using a chainsaw, mowing the yard, etc.

State of mind

Respondent’s comments to his client, the female in custody defendant, and to D.F. are more problematic. They were unworthy of an attorney. They were unquestionably inappropriate, culturally insensitive and presented a misguided view of social interaction. However, it is clear to the Commission that Respondent was not trying to demean or discriminate based upon either race or gender. There is no evidence in the record that suggests that Respondent manifested an intention to treat a person as inferior based on gender or race (Rule 8.4 (g)(1). There also is no evidence that the Respondent’s behavior constituted an unwelcome sexual advance or other conduct or communication unwelcome due to its implicit or explicit sexual content. (Rule 8.4 (g)(2).

Sanction

…the Grievance Commission finds that the appropriate sanction for Respondent’s misconduct is an admonition.

Therefore, the panel imposes a non-disciplinary sanction of ADMONITION upon Mark A. Perry, Esq., pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).

My Google of the term AFC found an Urban Dictionary definition of Average Frustrated Chump. (Mike Frisch)