Calling female commissioner ‘succubistic’ is free speech, State Bar judge rules

An attorney who called an Orange County commissioner's fee denial "succubistic" in a 2020 sexual harassment case was protected by the First Amendment, a State Bar judge determined, but recommended probation, fines and a 30-day suspension of his bar license for other insults and a perceived lack of remorse.

"I do not have any comment on the bar court's instant decision about my case, as litigation is still pending, other than to say that the court's extensive order gives both sides plenty to think about," Benjamin L. Pavone, partner at Pavone & Fonner LLP, said on Wednesday.

Pavone was charged with four counts of failing to maintain due respect for courts and judicial officers, under Business and Professions Code Section 6068, subdivision (b), according to the Feb. 10 State Bar Court decision by Judge Cynthia Valenzuela.

Court documents stated that Pavone requested the court dismiss the charges or recommend discipline that does not include any period of actual suspension. The State Bar judge dismissed two of the charged counts, concluding Pavone's "succubistic" comment was constitutionally protected. The other count pertained to whether Pavone received signed court judgments, which was dismissed without prejudice.

The charges relate to statements Pavone made to and about Carmen Luege, who was a court commissioner. Martinez v. O'Hara et al., Superior Court of California, County of Orange, 30-2012-614932-CU-FR-CXC.

Luege has since been appointed a Superior Court judge in Orange County.

Pavone said the "succubistic" comment was about the nature of the order and not about women.

The State Bar judge disagreed.

"This gratuitous comment had no reasonable purpose but to convey a gendered insult, disrespecting Judge Luege and the superior court," Valenzuela said.

However, Valenzuela said no reasonable reader would surmise that Luege was a mythical succubus. "As such, distasteful as it is, this comment was made figuratively, representing rhetorical hyperbole, and consequently is protected by the First Amendment," the judge ruled.

Pavone included the comment in an opening brief filed in December 2017 in response to a denial of attorney fees. Luege denied the request, stating that Pavone did not keep contemporaneous time records and that his manner of reconstructing time was unreliable and exaggerated.

Pavone responded in an appeal, "Judge Luege generally ruled during trial like a disinterested broker," and "regardless of many errors in ruling at issue, reversal is warranted because the ruling is not a product of good judicial decision making."

Pavone also said Luege was intentionally refusing to follow the law.

Valenzuela took umbrage with the latter statements, stating in her opinion, "Respondent's false statements and unsupported opinions relying on falsehoods impugned Judge Luege's honesty, motivation, and integrity and, by extension, the integrity of the superior court."

Valenzuela concluded that due to Pavone's "misconduct and the relevant aggravating and mitigating circumstances, the court recommends he be suspended for one year, with execution stayed, and placed on probation for one year, subject to conditions, including a 30-day actual suspension."

Pavone's word choice drew widespread attention and outrage among many members of the legal community, and the Daily Journal published articles and opinion pieces about it.

After the State Bar Court decision and on Feb. 15, Pavone sent to several publications, including the Daily Journal, a request to remove content from online portals pertaining to the "succubus case."

Pavone also stated that at least 17 trade media articles fall under the guise of "the internet's now-famous group shaming exercises" that has destroyed his reputation.

"The legality of this statement has now been ruled on by an ethics judge," Pavone stated in the letter. "As far as it constituting gender bias (CRC 8.4.1), this rule did not exist at the time the statement was made."

Pavone also pointed out that his comment was protected under the First Amendment.

"I am asking, in the nicest and most polite way I can think of, whether, in your discretion, you will consider removing it, because the statement falls within one's constitutional rights," Pavone said.

Pavone further stated that to "keep it online provides the public with the misleading impression that this was an ethics violation, apart from providing a distorted impression of my law practice."

In a request for further comment, Pavone responded by email on Wednesday, "If you are going to write a story -- and I expressly requested the opposite -- my alternate request is that the Journal divorce itself from the specifics of my case and look at the bigger picture of the State Bar discipline system (and who it elects to prosecute), which I have inventoried in detail."

Attached to the email statement were two complaints against George Cardona, the chief trial counsel of the State Bar, and others in which Pavone is seeking declaratory and injunctive relief, as well as a temporary restraining order. The documents were filed in federal court in San Diego on Oct. 7 and Oct. 8, respectively.