By Edward McIntyre
Benjamin Pavone represented his client in an employment-related lawsuit. The trial court denied class-action certification—a decision the court of appeal affirmed. The jury trial was successful, but perhaps a pyrrhic victory—$1,080 in economic damages; $7,000, noneconomic damages.
In an attorney-fee petition, Pavone estimated $414,407 in fees, based on reconstructed, not contemporaneous, billing records. On one day he said he billed 25 hours; on multiple days, 15 hours. The court found: “These entries raise serious questions about the accuracy of counsel’s alleged reconstruction of the time he spent working on this case. Taking into consideration the unreliability of the figures provided with the nominal damages the jury awarded,” the court denied the more than $160,000 attorney-fee request.
Pavone appealed. His notice of appeal said: “The ruling’s succubustic adoption of the defense position and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.” The characterizations may have seemed clever.
The court of appeal, however, had a dictionary, used it and was not amused.
It noted that Webster’s Third International Dictionary defines “succubus” as “1: a demon assuming female form to have sexual intercourse with men in their sleep—compare incubus 2: demon, fiend 3: strumpet, whore.”
The trial judge who denied the fee request was a woman. The court’s published portion of its opinion found that the notice of appeal’s “reference to the ruling of the female judicial officer … as ‘succubustuc’ constitutes a demonstration of bias, prejudice or harassment based on gender, and thus reportable misconduct” under Canon 3B(6) and Canon 3D(2) of the California Code of Judicial Ethics.
The court cited Business and Professions Code section 6068, subdivision (b) that makes it the duty of a lawyer “to maintain the respect due to the courts of justice and judicial officers” as well as Rules of Professional Conduct, rule 8.4.1—effective November 1, 2019—that prohibits unlawful harassment or discrimination on the basis of gender, a rule not effective when he filed the notice of appeal.
The court reported Pavone to the State Bar for his misconduct, directing the clerk to send copies of its opinion, the notice of appeal and opening and reply briefs to the State Bar.
No one can predict what discipline action, if any, the Office of Chief Trial Counsel may take. But a referral from a unanimous court of appeal panel will likely get its attention.
The published Standards for Attorney Sanctions for Professional Misconduct, which the State Bar Court and the California Supreme Court follow as guidelines because they promote discipline uniformity (In the Matter of Reiss (Review Dept. 2012) 5 Cal. State Bar Ct. Rptr. 206, 219; In re Sliverton (2005) 36 Cal.4th 81-91-92), provide for disbarment or actual suspension as the presumed sanction for a violation, inter alia, of Business and Professions Code section 6068, subdivision (b), the provision of the State Bar Act the court of appeal found Pavone had violated. In short, intemperate linguistic forays directed at judicial officers can be costly.
None of us relishes having our credibility challenged, particularly in a judicial decision—especially when, in our view, the criticism is unwarranted. Judicial officers make mistakes, just like the lawyers who appear before them. Professionalism and ethical standards, however, mandate that no matter how much we disagree with an outcome, an attack on the decision-maker—the judge’s integrity or other personal characteristic—falls well out of bounds. Moreover, it may have consequences.
This case serves as a graphic reminder that ad hominem attacks on judicial officers, even seemingly clever ones, not only fail—the court of appeal upheld the denial of attorney fees—but carry professional responsibility jeopardy.[1]
[1] The case is Martinez v. O’Hara, et al. (2019) _Cal.App.5th _ , 2019 WL 968304 (Fourth Appellate District, Division Three, February 28, 2019).
Edward McIntyre is an attorney at law.
This article was originally published in the SDCBA’s “Ethics in Brief” column series.