By Edward McIntyre
Briganti v. Chow was an otherwise unremarkable—indeed mundane—appeal of a trial court’s granting in part and overruling in part an anti-SLAPP motion in a defamation case. The court of appeal upheld the trial court decision, finding the court correctly determined that, while the speech involved a matter of public concern, the plaintiff had met the legal threshold for showing probable success on the merits. The defendant had, after all, publicly said the plaintiff was an indicted and convicted criminal—unquestionably the stuff of defamation, if untrue.
But then the court explained why it was publishing an otherwise routine opinion. “We publish to draw attention to our concluding note on civility, sexism, and persuasive brief writing.” Briganti v. Chow, B289046, 2019 WL 6242111, at *1 (Cal. App. 2d Dist., Nov. 22, 2019.) [Emphasis added.]
The court’s concluding note began:
Having resolved the merits of this appeal, we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, in the opening paragraph of Chow’s [lawyer’s] reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.
The offending paragraph states: “… after the [trial judge] … an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for Chow granting his anti-SLAPP Motion to Strike Respondent’s Second Cause of Action but against Chow denying his anti-SLAPP Motion against the First Cause of Action …. With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!” [Original capitalization preserved.]
Id, at p. *4. [Emphasis added.]
The lawyer, Jan Stanley Mason, apparently said at oral argument he intended his statement as a compliment. The court of appeal did not buy it: “[W]e conclude the brief’s opening paragraph reflects gender bias and disrespect for the judicial system.” The court went on: “Calling a woman judge — now an Associate Justice of this court — “attractive,” as [Mason] does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.” [Emphasis added.]
The court continued:
The California Code of Judicial Ethics compels us to require lawyers in proceedings before us “to refrain from … manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation ….” (Cal. Code Jud. Ethics, canon 3B(6)(a).) That goes for unconscious as well as conscious bias. Moreover, as judicial officers, we can and should take steps to help reduce incivility, including gender-based incivility. One method is by calling gendered incivility out for what it is and insisting it not be repeated. In a more extreme case we would be obliged to report the offending lawyer to the California State Bar. (Martinez v. O’Hara (2019) 32 Cal.App.5th 853, 854, 244 Cal.Rptr.3d 226.)
Id. at p. *5. [Emphasis added]
The court ended by thanking lawyers who engaged in thoughtful, professional briefing.
We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable. Good brief-writing requires hard work, rigorous analysis, and careful attention to detail. Moreover, we recognize “every brief presents opportunities for creativity— for imaginative approaches that will convey the point most effectively.” We welcome creativity and do not require perfection. We simply did not find the peculiar style and content of this brief’s opening paragraph appropriate, helpful, or persuasive.
Ibid.
Mr. Mason is likely fortunate the court decided to use this episode as a “teachable moment,” rather than report it to the State Bar. Rules of Professional Conduct, rule 8.4.1(a) prohibits unlawful harassment or discrimination against any person on the basis of a protected characteristic—one of which is gender. Comment [2] to the rule makes clear that conduct prohibited by 8.4.1(a) includes conduct of a lawyer in a proceeding before a judicial officer, citing the same canon 3B(6) to which the court of appeal referred.
In addition, Business and Professions Code section 6068, subdivision (b) states that it is a duty of every lawyer “[t]o maintain respect due to …judicial officers.” Lawyers have been disciplined for inappropriate comments about judges. See, e.g., Ramirez v. State Bar (1980) 28 Cal.3d 402 (actual suspension for derogatory comments about judges.)
In Martinez, which the Briganti court cited, that court of appeal referred the lawyer, Benjamin Pavone, to the State Bar because 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 court’s repair to a dictionary revealed: “Webster’s Third New International Dictionary (2002) at page 2282, column 3, defines the term “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.” (Capitalization omitted.)” And so, the court concluded: “The notice of appeal’s reference to the ruling of the female judicial officer, from which plaintiff appealed, as “succubustic” constitutes a demonstration “by words or conduct, bias, prejudice, or harassment based upon … gender” and thus qualifies as reportable misconduct.” Martinez, supra 32 Cal.App.5th at pp. 857-858.
The “teachable moment?” Courts will enforce our ethical obligations to refrain from harassment, sexist or otherwise, and require true professionalism in addressing courts and judicial officers.
Edward McIntyre is a professional responsibility lawyer and co-editor of San Diego Lawyer.