Attorney sues bar in federal court over discipline for criticizing jurists’ competence

San Diego attorney Benjamin L. Pavone sued the State Bar, arguing it violated his constitutional rights by filing disciplinary charges against him for calling a court ruling "succubustic" and criticizing the competency of two judicial officers.

According to the suit filed Tuesday in the Central District of California, the bar presented Pavone, of Pavone and Fonner LLP, with a notice of disciplinary charges stemming from a case in 2016, in which he represented a client in an employment dispute. Pavone v. State Bar of California, Office of Chief Trial Counsel Enforcement, 2:20-cv-07193 (C.D. Cal., Filed Aug. 11, 2020).

The jury awarded his client $8,080 in damages for sexual harassment. However, the court found in favor of the defendants on the client's motion for an injunction on allegations of unfair advertising and unfair business practices.

The trial judge also denied Pavone's request for an award of $146,634 in attorney fees.

"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," Pavone said in his notice of appeal. Martinez v. O'Hara et al., 30-2012-614932 (Orange County Super. Ct., filed April 14, 2017).

The bar alleged Pavone's statement manifested gender bias against Commissioner Carmen Luege, a female judicial officer, in violation of Business and Professions Code Section 6068(b).

Pavone said the bar's charges violate his First Amendment, due process, and other constitutional advocacy rights. Pavone also said he said nothing about Luege personally.

"Rather, plaintiff used a colorful (or caustic, depending on one's viewpoint) metaphor to criticize a court ruling," Pavone's federal complaint said.

Apart from the "succubist" remark, the bar also alleged that Pavone had questioned the honesty, motivation, integrity, or competence of Luege, by making false accusations in subsequent appellate briefs.

The allegations came after Pavone said it appeared to him that Luege attempted to thwart the law by not serving the judgment after signing it and thereby starting an appellate clock without notifying him about it, which the bar disputed.

In his federal suit, Pavone said Luege tried to "secretly expire plaintiff's client's appellate rights, without plaintiff knowing the clock had started," which the bar disputed in their filing.

"This count represents the State Bar's attempt to muzzle constitutionally protected freedom of thought and speech under the guise of characterizing such commentary as 'disrespectful,' perhaps the singularly most vague word in the English language," Pavone claimed in his suit.

Pavone had also criticized retired Orange County judge Gregory Munoz, who handled the case before Luege. Pavone claimed in his suit that Munoz's handling of the case reflected "profound judicial incompetence."

According to the suit, Munoz's clerk was biased, and Munoz himself abdicated his judicial duties to research clerks.

The suit said that Luege's ruling represented a form of retaliation "for plaintiff's act of litigating the incompetence of an earlier judge."

In a statement, Pavone said the bar is jeopardizing an advocate's ability to challenge a lower court ruling by criminalizing appellate argument.

"To the extent the State Bar believes that meticulously detailed legal arguments legitimately subject appellate lawyers to these sorts of ethical risks, and to the extent it proposes to glaciate appellate free speech rights, I'm sure the bar is as eager as I am to spend the next decade in federal court debating the matter," Pavone said.

The bar declined to comment on the litigation.