Attorney sues bar over ‘due respect’ code provision

A San Diego attorney is seeking a restraining order to stop the State Bar from enforcing the California Business and Professions Code's "due respect" provision that he was accused of violating when he filed an appellate brief referring to a commissioner's fee request denial as "succubistic."

Benjamin L. Pavone, partner at Pavone & Fonner LLP, says in a case filed in federal court last month that enforcement of the rule infringes his First Amendment rights.

The 4th District Court of Appeal reported him to the bar last year, accusing him of manifesting gender bias when he used the term in reference to a decision made by Orange County Superior Court Commissioner Carmen R. Luege.

Pavone filed his case against the bar in the Central District of California just after midnight on Aug. 11 and the bar charged him later that morning. Benjamin Pavone v. State Bar of California, Office of Chief Trial Counsel Enforcement, 2:20CV07193 (C.D. Cal., filed Aug. 11, 2020).

"One of the prerogatives of American citizenship is the right to criticize public figures," Pavone said in his motion for a restraining order last Friday.

On Monday the bar filed an opposition to Pavone's motion, arguing he never served the agency with his Aug. 11 complaint.

Furthermore, argued Marc A. Shapp, assistant general counsel for the State Bar, the federal court has no jurisdiction over the matter, according to Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 432, 434 (1982). Also, the federal court action had not proceeded by the time the bar filed its charges, so "plaintiff's race to the federal courthouse thus does not provide him with shelter from the State Bar's disciplinary proceedings, nor should it," Shapp wrote.

Pavone said the bar's proceedings have been no more substantial than the federal action.

"How would such proceedings ever occur when logically a lawyer is not going to seek to invalidate a statute on federal constitutional grounds until he has a clear idea of what the bar is charging him with?" Pavone said.

In his state appellate brief that began the dispute, Pavone had stated: "The ruling's succubistic adoption of the defense position, and resulting validation of the defendant's pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners."

Business and Professions Code Section 6068(b), which the bar accuses Pavone of violating, states that it is an attorney's duty to maintain "the respect due to the courts of justice and judicial officers."

Pavone said the code section is overly broad, unconstitutional and doesn't sufficiently define the term"due respect."

Pavone argued he had filed the federal action before the bar initiated his disciplinary proceedings and thus is entitled to adjudicate his case in the district court, "which is also the one that is most expert in First Amendment constitutional law."

Dean Erwin Chemerinsky of UC Berkeley School of Law commented that offensive speech is generally protected by the First Amendment, but pointed out there is an abstention problem which could keep the federal court from reaching the First Amendment issue, per Middlesex.

Eugene Volokh of UCLA Law School agreed it was unlikely the federal court would take the case. Also, lawyers can be sanctioned for saying things that may be highly insulting or related to race or sex, he said.

Several federal cases in the 1990s held that personal or bitter criticism of bench officers fall within First Amendment protection, Pavone argued. He cited Gentile v. State Bar 501 US 1030 (1991), where the U.S. Supreme Court invalidated a Nevada rule that placed limits on statements attorneys could make if they are aware their comments could likely prejudice the fact-finder of a case. Criminal defense attorney Dominic Gentile was charged with violating ethics rules when he stated his client's innocence and accused police of corruption. The Supreme Court said Nevada's rule was too vague.

There is no U.S. Supreme Court case that squarely addresses the subject, and the Gentile case only deals with the matter to the extent Gentile's remark was made out of court and garnered publicity, Volokh said. In Pavone's case, "when you are a lawyer acting as a lawyer, you are subject to more constraint. That is also certainly true in courtrooms and in court filings," he said.

Pavone maintains his use of the word "succubistic" never specifically referred to the commissioner herself and was only used as an adjective to describe her decision.

Pavone also argued the bar's prohibition against 'gender bias' was not codified as an ethical rule until Nov. 1, 2018, more than a year after he used the word "succubistic."

"It is not a plausible violation of the statute to 'manifest' gender bias when the only impermissible assertions lie in specific factual accusations directly impugning the judge's moral character," Pavone argued.