By Deborah Wolfe
Apparently, in 2022, despite years of progress and women entering the legal profession at a rate of 51% compared to men, misogyny is alive and well — though perhaps less overtly than was tolerated in the past. However, the current Rules of Professional Conduct (RPC), in effect since Nov. 1, 2018, provide for the State Bar to take disciplinary action against lawyers engaging in discriminatory conduct of any kind against anyone when acting in their capacity as a lawyer. The former RPC dealing with virtually all types of unlawful discrimination by lawyers, 2-400, was a weak and rarely-used basis for discipline, and only applied to the “management or operation” of a law practice. Specifically, a 2-400 violation was not even actionable by the Office of Chief Trial Counsel unless it was first “found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule.”
The current rule relating to unlawful discrimination, harassment, or retaliation, 8.4.1, is robust, all-encompassing, and has real consequences to the practitioner found to be in violation of it. The rule, entitled “Prohibited Discrimination, Harassment and Retaliation”, states, in subsection (a): “In representing a client, or in terminating or refusing to accept the representation of any client, a lawyer shall not: (1) unlawfully harass or unlawfully discriminate against persons* on the basis of any protected characteristic; or (2) unlawfully retaliate against persons.*[1] [Emphasis added.]
This article will focus on conduct by a lawyer in representing a client, and the “persons” being opposing counsel. “Protected characteristic” is defined in the rule as meaning “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.”[2] “Gender” is one of the many enumerated protected characteristics.
In what can only be described as a shocking, disgusting, and subversive act, on June 30, 2022, a local (male) attorney in open court, after having suffered an adverse ruling from the judge, made a statement directly to opposing counsel (all of whom were female) that used a gender-specific epithet in retaliation for their apparently superior advocacy in prevailing on the motion for nonsuit before the Court. The losing lawyer thought he was clever in disguising this harassing statement in what on the surface appeared to be a neutral remark, but the phrase has a specific meaning in the vernacular as a gender-specific slur. The remark was intentional, as the attorney later admitted.
Counsel for the prevailing party, in shock at the time, approached the Court (Judge Eddie Sturgeon) on July 5, 2022 to request a hearing regarding the remark. The minute order of the Court, entered on July 13, 2022 appears below:
CASE NO: 37-2018-00016374-CU-PO-CTL CASE INIT.DATE: 03/22/2018
CASE TITLE: Veronica Doyle vs. Vault PK
The purpose of this Minute Order is to address a statement made by Plaintiff’s counsel, [Name omitted- hereinafter referred to as “Attorney M”] made on the record during trial on June 30, 2022. Specifically, while [Attorney M] was addressing the Court, and after this Court orally granted Defendant MTS’s motion for nonsuit, [Attorney M] stated as follows:
“… I hope this doesn’t sound unctuous, but just to end the weekend on a good note, I want to thank the court staff. I want to say to have a good weekend to Mr. DeMaria. I want to say have a good weekend to Ms. Frerich. And I want to say have a good weekend to both MTS counsel. I’ll See you next Tuesday. See you next Tuesday.” (Judge’s Ex. 1 at p. 110, emphasis added.)
Completely unaware of the intended meaning of “See you next Tuesday,” (see infra), the Court responded, “How kind.” (Judge’s Ex. 1 at p. 110.)
On Tuesday, July 5, 2022, counsel for MTS approached the Court and requested to be heard about an issue concerning the above statement made by [Attorney M] on June 30, 2022. The Court and all counsel met in chambers to discuss the issue. The in-chambers meeting was recorded and documents consisting of various emails were provided to the Court. (Judge’s Exs. 2-4.) During this meeting it was revealed, that unbeknownst to the Court, the term “See you next Tuesday,” is a serious covert insult directed towards women. (See Judge’s Ex. 5 at p. 6-9 ; see also https://www.dictionary.com/e/slang/see-you-next-tuesday/.) It was also revealed during the in-chambers meeting that [Attorney M] intentionally made the statement with the full knowledge of the meaning of the phrase. (Judge’s Exs. 2, 5 at pp. 8-9.) [Attorney M] tried to explain that his deliberate use of the phrase was an “inside joke” between him and one of this firm employees which he expected no one in the courtroom would detect. (Judge’s Ex. 5 at pp. 8-9, see also Judge Ex. 2.) However, it is not a joke to this Court that [Attorney M] made this egregious and offensive insult intentionally to two female attorneys via a coded message. In fact, but for [MTA Counsel hereinafter referred to as “Attorney A”] bringing it to the Court’s attention, this wrongdoing would have been undetected. [Attorney M] not only attempted to deceive all counsel, but also this Court, into believing he genuinely was wishing everyone a nice weekend when in fact he was purposefully directing a derogatory epithet toward the female defense attorneys who had just prevailed in a nonsuit in this case.
An attorney is an “’officer of the court’” who, by virtue of his or her professional position, undertakes certain ‘special duties … to avoid conduct that undermines the integrity of the adjudicative process.” ‘(F.T.C. v. Network Services Depot, Inc. (9th Cir. 2010) 617 F.3d 1127, 1143.) In other words, “‘[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’ (People v. Chong (1999) 76 Cal.App.4th 232, 243, 90 Cal.Rptr.2d 198.) Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct. (Id. at p. 245, 90 Cal.Rptr.2d 198; see also Stone v. Foster (1980) 106 Cal.App.3d 334, 355, 164 Cal.Rptr. 901.)” (In re S.C. (2006) 138 Cal.App.4th 396, 412.) “When, during the course of trial, an attorney violates his or her obligations as an officer of the court, the judge may control the proceedings and protect the integrity of the court and the judicial process by reprimanding the attorney.” (Chong, supra, 76 Cal.App.4th at 243–244.)
[Attorney M’s] statement directed to [Attorney A] and [MTS Counsel hereinafter referred to as “Attorney B”] is reprehensible and will not be tolerated in this courtroom. As such, for reasons stated above, the Court finds that it has a duty to alert the State Bar of California of [Attorney M’s] conduct on June 30, 2022 and will be filing a Discipline Referral with the State Bar.
Attorney M carefully carved out the Court and court personnel, and specifically directed his offensive remark to the two female opposing counsel, intending to intimidate and harass them. Instead of an apology, losing counsel attempted to explain and minimize his conduct, claiming he was making an “inside joke” meant for one of his firm’s employees in the courtroom. Not only was he insulting opposing counsel, but was also, apparently, counting on their not being intelligent or astute enough to understand his meaning.
The new RPC on this issue, 8.4.1, puts the burden on an attorney engaging in discrimination, harassment and retaliation to prove they are NOT in violation of this Rule once a complaint is made to the Bar, or if anyone brings suit or makes an administrative claim of conduct against an attorney which could be considered a violation of this Rule. In fact, subsection (d) of the Rule states: “A lawyer who is the subject of a State Bar investigation or State Bar Court proceeding alleging a violation of this rule shall promptly notify the State Bar of any criminal, civil, or administrative action premised, whether in whole or part, on the same conduct that is the subject of the State Bar investigation or State Bar Court proceeding.” [Emphasis added.] Should the attorney against whom the complaint is directed fails to notify the State Bar of such outside suit or administrative claim, it is considered to be a separate offense in any State Bar Court proceeding.
Further, Business & Professions Code §6106 provides that a lawyer may be disciplined “for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.” It appears that the Plaintiff’s counsel may have “hit the trifecta.”
[1] “Person” is defined by RPC 1.0.1 as having the meaning stated in Evidence Code section 175, which states: ““Person” includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.”
[2] 8.4.1(c)(1)
Deborah Wolfe is the founder of Wolfe Legal Group, PC. Deborah is an experienced trial attorney who has served on the State Bar of California Legal Malpractice Law Advisory Commission, and is a member of the San Diego County Bar Association’s Legal Ethics Committee since 2006. She frequently testifies as an expert witness in ethics and standard of care in legal malpractice/breach of fiduciary duty cases.