If you’re thinking that the inflammatory words of a certain candidate in the current race to the White House may be helping to re-legitimize the condescending treatment of women through such sexist talk as referring to their monthly cycles—or imminent lack thereof—don’t expect the world of federal court judges to follow along. Indeed, while the presidential race itself may seem more like an extended bad remake of It’s a Mad, Mad, Mad, Mad World, the courts see nothing funny or comical about male practitioners of law who engage in that sort of speech, whether intended to be hurtful or just the result of a far outdated, moronic, lame sense of humor. Indeed, they may issue a penalty for making an offensive remark towards a female.
Consider the recent ruling in the case of Eliezer Cruz-Aponte, et al., v. Caribbean Petroleum Corporation, et al., a class action case from the U.S. District Court of Puerto Rico (Civil Case No. 09-2092, (FAB)). There, an attorney for the plaintiffs, one Mr. Camino Salas, made what was presumably supposed to be a humorous comment about a female-related issue that Ms. Monserrate-Peñagaricano, (attorney for a co-defendant) might have been experiencing during a deposition of her client. He would later claim it was out of concern for her health, but clearly the other parties didn’t take it that way.
To get the context, a reading of the transcript might be most helpful:
(following some intermittent discussions about the room being hot)
Mr. Nevares: The air conditioner works.
Ms. Monserrate: I don’t know, but it’s hot in here.
Mr. Salas: ¿Tienes calor todavia? [You still feel heat?] You’re not getting menopause, I hope.
Ms. Monserrate: That’s on the record.
Mr. Salas: No, no, no, no.
Yes, yes, yes, yes, yes.
To be generous, at least Mr. Salas didn’t brush off the comment as if it was nothing, upon recognizing that Ms. Monserrate and her colleagues had taken offense—he apologized and admitted that his words were improper. He even admitted as much in a filed response to the motion for sanctions filed by Monserrate. But the damage was already done. She asserted that the comment was discriminatory, and she was “humiliated, embarrassed, and demeaned” by it. Indeed, she suggested a rather harsh punishment for Mr. Salas—that the court revoke his ability to appear further in the case (he had been admitted to appear pro hac vice*).
What’s all the more interesting here is that the conduct did not take place in a court room or before a judge, but rather at a deposition. Nevertheless, since the deposition is part of a court proceeding, it is considered to be “before the court” for purposes of professional conduct. Furthermore, the rules of conduct have been standardized and are not some unique aspect of the Puerto Rico federal courts. The American Bar Association has adopted the Model Rules of Professional Conduct, and courts have authority to impose monetary and other penalties as they deem appropriate for violations of those Model Rules.
Upon review of the evidence, including an audio recording of the exchange, the court deemed the comment to be solely intended to embarrass Ms. Monserrate, and that it was unequivocally in violation of Model Rule 4.4. The discriminatory aspect was also highlighted by the court; references to menopause are a double-whammy, considering that they discriminate based on both gender and age.
While the court agreed that the comment was a violation, it did not find extenuating circumstances sufficient enough to warrant revoking Salas’ pro hac vice admission. His apologies, both in the record of the deposition transcript as well as in his papers responding to the motion for sanctions, were noted, as was his otherwise generally professional behavior throughout the proceedings. But the court was not about to let Mr. Salas off scot-free. Thus, the court ordered Mr. Salas to pay $1,000 in attorney’s fees for Ms. Monserrate’s costs in bringing the motion, as well as to take an authorized course in professional conduct.
So, does this mean that only attorneys have to be careful of what slips from their lips at a legal proceeding, whether in a courtroom or not? Hmm. Well, we don’t recommend trying it, given that there is a striking similarity between the “dignity of the court” language referenced in the Model Rules relied upon for this ruling and in the various general provisions that allow judges to determine parties to be found in contempt of court.
Being rude or disrespectful to an attorney might be considered tantamount to being rude and disrespectful to a judge, and such can certainly be deemed as offending the dignity of the court, and a judge may issue sanctions to the disrespecting party without even the need for a motion being filed by the disrespected party. The word is out, and we suspect that future violators may receive more severe penalties.
Bottom line: Unless you actually are that guy with the bad comb-over, who likes to practice saying “You’re fired!” into the mirror, you’re gonna want to get into the habit of speaking respectfully to women so you don’t accidentally blurt out the wrong comment at the wrong time. Period.
*Literally “this time only”—a legal mechanism that allows attorneys not licensed to practice in the locality in which a case is being heard to nevertheless appear before a court based upon their standing in another state bar.
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