Division 3 of the Fourth District Court of Appeal has referred a lawyer to the California State Bar based on the lawyer's reference to a female judge's ruling as “succubustic.” Citing the definition of a succubus “as a demon assuming female form which has sexual intercourse with men in their sleep” the appellate court published the part of the opinion finding misconduct (Martinez v. O'Hara, Fourth District, Div. 3, case no. G054840, filed 2/27/19) “to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”
The court referred the attorney to the State Bar on the authority of Code of Judicial Ethics Canon 3D(2): “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.” Despite the seemingly optional language regarding reporting misconduct, the court interpreted the advisory committee commentary accompanying canon 3D(2) as imposing a mandatory reporting requirement to the State Bar regarding lawyer misconduct.
The court cited Business & Professions Code section 6068(b) requiring an attorney to maintain the respect due the courts, as well as new Rule of Professional Conduct 8.4.1 addressing gender bias. Even though the attorney's misconduct predated the enactment of the rule, the court concluded that the attorney's conduct would have violated the rule. In addition to his characterization of the judge's ruling, the attorney accused
“the trial court of intentionally refusing to follow the law… and the statement in the notice of appeal suggesting the trial court tried to prevent plaintiff from receiving notice of the signed judgment in an effort to thwart appellate review of its decision, also made without any support in the record, constitute reportable misconduct.
The court also cited the attorney's use of other colorful nomenclature in the appellate briefs
We further note that many of the words and phrases in the notice of appeal have no place in a court filing. We cannot understand why plaintiff's counsel thought it wise, much less persuasive, to include the words “disgraceful,” “pseudohermaphroditic misconduct,” or “reverse peristalsis”in the notice of appeal.
The Office of Chief Trial Counsel takes complaints from judges seriously. Part of its public protection mission includes protecting the integrity of the justice system. This will be one to watch.