Eye See; The Lawyer Rules of Professional Conduct Applied in New Jersey

A New Jersey lawyer was reprimanded Friday for demeaning and discriminatory statements about the Chinese culture in a letter to a medical malpractice defendant.

The New Jersey Supreme Court reprimanded George Farmer of Northfield for violating a disciplinary rule banning discriminatory conduct undertaken in a professional capacity. See the  court’s Sept. 6 order and the Jan. 15 decision of the New Jersey Supreme Court Disciplinary Review Board.

Farmer had sued the defendant, an optometrist, on behalf of a client who had eye surgery.

Farmer contended that the optometrist had lied and tried to cover up wrongdoing by altering records, according to the decision by the review board. In a July 2013 email to the defendant, Farmer wrote,

“I have read your letter. The only thing I can suggest is that you are either: delusional, a pathological liar, in denial, a psychopath, or all of the above.”

In an October 2013 letter to the optometrist’s lawyer, Farmer said he had no doubt that the optometrist was a pathological liar. He went on to make this assertion: “I am/was not a student of Chinese culture. So I did a little research and found that ‘In fact, lying to achieve some business or social aim, and getting away with it, is considered to be a sign of intelligence and social skill among many Chinese.’

http://thelinguafranca.wordpress.com/2008/03/do-the-chinese-lie-that-depends/. (page now removed).

Also, in the Chinese culture, ‘lying has become a means to an end.’

http://EzineArticles.com/1435598. (page now removed).

“Having read those articles as well as other related articles, it is starting to make sense to me. Your client’s only problem is that even though he is a doctor, and he thinks that he can lie his way through this matter, he is not going to get away with it. I am someone who is smarter than the average person on the street, and am wise to his nonsense, trickery and chicanery.”

During the ethics hearing, Farmer had contended that he was merely citing the opinions of experts. He also relied on testimony from the client, his girlfriend, his ex-wife and two friends, who said they had never seen Farmer exhibit discriminatory or racist behavior.

A district ethics committee had found that the statements were discriminatory in nature and directed at the defendant in a derogatory manner based on his national origin. In mitigation, the committee said Farmer’s conduct “was an isolated incident and not repeated or recurring behavior.”

The review board affirmed, finding a violation of New Jersey Rule 8.4(g) of the Rules of Professional Conduct. The rule states that “it is professional misconduct for a lawyer to: engage, in a professional capacity, in conduct involving discrimination … because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socio-economic status, or handicap where the conduct is intended or likely to cause harm.”

A comment to the rule says the word discrimination is to be “construed broadly,” and it includes “derogatory and demeaning language.”

The review board said Farmer’s statements are “discriminatory and demeaning on their face.” In addition, the board said, Farmer’s contentions that he was not a racist and was merely relying on expert opinions were “wholly specious and unworthy of serious consideration.”

The review board noted this comment of the district ethics committee:

“The mere existence of an opinion online does not establish its author as an expert. If it did, every post on Facebook or Twitter could constitute expert opinion.”

Farmer told the ABA Journal that he is working on a statement about the reprimand and would forward it when it was ready.

Ethics Helpline

The Office of Chief Disciplinary Counsel operates the toll-free Ethics Helpline: (800) 532-3947. Attorneys are encouraged to leave messages that are answered by two staff ethics attorneys between 8 a.m. and 5 p.m. Monday through Friday. In a Herculean effort, those two attorneys responded to more than 6,000 calls for assistance during the 2017-2018 bar year.

While the office is unable to issue written opinions, provide legal advice regarding ethical questions, or address questions concerning pending grievances, the attorneys do provide helpline callers with guidance on the Texas Disciplinary Rules of Professional Conduct, pointing to ethics opinions and pertinent case law that can help callers make informed decisions.

Ethics Question of the Month

In September, the Texas Bar Journal, in partnership with the Texas Center for Legal Ethics, began publishing an informative Ethics Question of the Month for readers to ponder. The feature is designed to educate Texas lawyers about the Disciplinary Rules of Professional Conduct, Texas ethics opinions, and other sources of ethical guidance. See this month’s question on Page 680. The answer is published with the question, and the full reasoning behind each month’s answer can be found on the TCLE website, legalethicstexas.com.

Texasbar.com/ethics

Many ethics resources, including the Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure, can be found online at texasbar.com/ethics. The page also has dozens of resources and links to commissions, committees, and nonprofits that concern themselves with promoting ethics within the practice of law.

Free ethics articles in the TexasBarCLE Online Library

You may know that you can purchase access to more than 25,000 seminar articles through the TexasBarCLE Online Library at texasbarcle.com. You may not know that all State Bar members have free access to more than 2,100 ethics-related articles through the Online Library. Also, the Texas Young Lawyers Association’s Ten Minute Mentor series features videos on ethics and professionalism at tenminutementor.com.

Ethics speaker directory

To assist local bars and help promote ethics education, the State Bar of Texas Professionalism Committee created a directory of ethics professionals who are available to speak at CLE events throughout the state. The directory and other professionalism resources can be found at texasbar.com/professionalism.

Texas Lawyer’s Creed

Finally, the Texas Bar Foundation and the State Bar Professionalism Committee provide free copies of the Texas Lawyer’s Creed in the form of a brochure or a poster suitable for framing. The Texas Supreme Court and Texas Court of Criminal Appeals approved the creed in 1989 in an effort to eliminate abusive tactics within the practice of law and promote respect and confidence in the profession. To receive brochures or a poster, email your address to professionalism@texasbar.com and bar staff will happily fill your request.

I found many of these ethics resources tremendously helpful in my practice as a Galveston County trial lawyer, and I hope you do as well.

Your State Bar is committed to fostering high standards of ethical conduct and providing useful services to our members. If you have ideas for additional resources, please let me know.

Sincerely,

Trey Apffel
Executive Director, State Bar of Texas
Editor-in-Chief, Texas Bar Journal
(512) 427-1500
@ApffelT on Twitter

Have a question for Trey? Email it to trey.apffel@texasbar.com and he may answer it in a future column.