March 30, 2011
Gender-Based Epithet Draws Censure
An attorney who, among other things, referred to a female judge with a four-letter word that begins with a "c" and ends with a "t" in the course of negotiating a plea deal with prosecutors, was publicly censured by a Colorado hearing board.
The underlying case involved DUI charges against the attorney's client. The attorney had harsh words with court staff in a series of phone calls over the procedure for vacating a hearing scheduled later that day. He sought to speak to the judge directly and was advised that he could not do so. The judge later called him to confront him about his behavior but the two did not speak. A stayed bench warrant was issued for the client.
The attorney called a staffer to apologize the following day.
The hearing board found the attorney's treatment of court staff was "ill mannered" and "impolite" but that he had a substantial purpose other than to embarrass, delay or burden the staff. He was trying to obtain relief for his client.
The attorney later met with the prosecutor to discuss a possible plea agreement in the case. He expressed his intent to file a motion to recuse the judge: "Respondent listed his reasons for seeking her recusal, chief among them his belief that the judge was biased against him and his client, after which he launched into a discussion of his history with the judge." The offending remarks were in the course of the discussion.
They then appeared before the judge: "...accounts...differ as to the tone, mood, and aspect of the colloquy between Respondent and [the judge]. While no one present during the hearing would characterize their dialogue as cordial, reactions otherwise run the gamut." The hearing board declined to find that the in-court conduct violated any ethics rule.
As to the slur (he also had called the judge an "idiot."), the attorney claimed First Amendment protection:
...[he] argues that his remark was not a statement of fact, but rather an idea or an opinion that is incapable of being proved false...[his] slur was nothing more than emotive language designed to convey disgust, disdain, and loathing-- the essense of subjective opinion.
The hearing board rejected the contention, noting it raised an issue of first impression in Colorado. The board discusses a number of cases from other jurisdictions in rejecting the claim of protected speech.
The board concluded that the attorney's "lack of civility to court staff, intemperate behavior during a hearing, [and] use of a gender-based epithet in the course of representing a client" did not violate Rules 4.4(a), 3.5(d) or 8.4(d). However, the slur did violate Rule 8.4(g), which prohibits conduct that exhibits bias or prejudice in the course of representing a client. (Mike Frisch)
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