Words that HurtTopic:
A lawyer may be disciplined for words that manifest bias or prejudice against a listener’s sexual orientation.
Stacy Lynn Kelley boasts an admirable enough resume. The Indianapolis native received her Bachelor of Arts Degree from Indiana University in 1992 and her Juris Doctor from Saint Louis University School of Law in 1996. After being admitted to the Indiana Bar on November 4, 1996, she was hired as an associate attorney at Roberts and Bishop in Indianapolis and practiced in the area of civil litigation, including insurance defense-bodily injury, asbestos litigation, family law, personal injury, probate, foreclosures, and criminal defense. Subsequently, she served in an ‘Of Counsel’ role with Lee, Cossell, Kuehn, & Love, LLP, continuing primarily in the area of civil litigation. She is now a lawyer at Glaser & Ebbs and has a litigation practice.
Her professional affiliations are most impressive and seem to be inconsistent with the type of lawyer misconduct that she was found to have committed. She is a past member of the Board of Governors of the Indiana State Bar Association, a past ISBA Young Lawyers Section District Representative; a past member of the Board of Managers of the Indianapolis Bar Association, a past member of the Board of Directors of the Marion County Bar Association. She is a member of the American Bar Association and the National Bar Association, the nation’s oldest and largest association of predominantly African American lawyers and judges. She is also included upon the rolls of the Indianapolis Inns of Court, served on the Indiana Supreme Court Pro Bono Commission and, remarkably, sits on the Indiana Supreme Court Board of Law Examiners Character & Fitness Committee.
In June 2008, she began receiving, on her unlisted phone number, persistent pre-recorded messages from a company seeking a person who had the same name as that of her husband. Kelley and her husband agreed that she would telephone the company at the toll-free number provided in the messages. Accordingly, Kelley called the toll-free number and spoke to a male representative of the company, identifying her husband as her client. Noting what she thought was a feminine-sounding voice, Kelley gratuitously asked the company’s representative whether he was “gay” or “sweet.” After the company representative commented on the unprofessional nature of this inquiry, the phone conversation ended abruptly.
Although the decision of the Indiana Supreme Court does not reveal who generated a grievance against her, Kelley was investigated by the Indiana Supreme Court Disciplinary Commission to determine whether or not she had violated Indiana Professional Conduct Rule 8.4(g), which prohibits a lawyer from engaging in conduct, in a professional capacity, manifesting bias or prejudice, in relevant part, upon sexual orientation unless the conduct is necessary to further legitimate advocacy.  Eventually, Kelley and the Disciplinary Commission submitted a Statement of Circumstances and Conditional Agreement for Discipline. The parties asserted before the Indiana Supreme Court that: (1) Kelley had no disciplinary history; (2) Kelley fully cooperated with the Disciplinary Commission; (3) Kelley has a history of providing services to the legal profession; (4) Kelley’s comments were made after enduring harassing phone calls to her home; and (5) Kelley demonstrated her remorse by apologizing to the company representative.
She was publicly reprimanded. The case is
In re Stacy L. Kelley
, 49S00-0910-DI-438 (Ind. May 7, 2010).
Kelley’s case may be indicative of a growing trend to investigate or prosecute lawyers for violating anti-bias provisions or for otherwise engaging in conduct prejudicial to the administration of justice. In May 2010, a Chicago lawyer was charged by lawyer regulators with using ethnic and sexual slurs to describe fellow traffic court lawyers in a courtroom. He convicted last year of disorderly conduct after yelling “scumbag” and “homosexual” while pointing his finger at another attorney. In 2009, a Michigan lawyer was sanctioned for using intemperate language in a courthouse parking lot after a hearing. Specifically, following a proceeding on a request for a personal protection order filed against clients, a married couple with whom the plaintiff had once resided, Kirk encountered a 69-year-old African-American woman in the courthouse parking lot. The woman was in the company of several other women. She attended the hearing to give moral support to her friend. The friend was the better half of the married couple the plaintiff had moved in with after her falling out with Kirk’s clients. Numerous other persons were also in the parking lot. Kirk did not know the woman. Kirk directed words to her while she was in close proximity to him. The woman and a friend testified that Kirk called her a “f-----g n----r bitch,” three times and that his voice was loud enough to be heard by several other persons. Kirk testified that the woman and another woman started the unpleasantness by calling him, “a sawed off son of a bitch” and “a short little midget.” Kirk denied he used the words “f-----g n----r” in response to the woman but admitted calling her a “bitch.”
Grievance Administrator v. Martin O. Kirk
, Case No. 08-28-GA, Michigan ADB (Michigan January 20, 2009).
JAMES J. GROGAN, DACC, Illinois ARDC
 The full text of the rule provides that it is professional misconduct for an Indiana lawyer to: “(g) engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.”