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Sanctions for Lawyer's Remark Voided : Courts: Ruling on gender-based derogatory comments is overturned by appellate judges. They say the Escondido attorney's statement was offensive but not illegal.

May 10, 1995|SUSAN MARQUEZ OWEN | TIMES STAFF WRITER

A federal appeals court has reversed a Santa Ana judge's decision to sanction a lawyer for making derogatory, gender-based comments, saying that although the attorney's statements to a female prosecutor were offensive, they were not illegal.

The ruling reversed the first public sanctioning of an attorney for gender-based comments in the Central District of California, which spans seven Southern California counties.

The ruling by the U.S. 9th Circuit Court of Appeals in Pasadena reversed the September, 1993, decision by U.S. District Judge Alicemarie Stotler, who ordered Frank L. Swan, an Escondido attorney, to write a formal apology to prosecutor Elana S. Artson after the U.S. attorney's office objected to a letter that Swan sent to Artson.

The letter came after the government persuaded the judge that Swan should be disqualified from representing a client in a tax evasion case because of a conflict of interest.

Swan's letter to Artson stated: "I have something here that I think applies to you." He enclosed an excerpt from a law magazine article that stated: "Male lawyers play by the rules, discover the truth and restore order. Female lawyers are outside the law, cloud the truth and destroy order."

Swan could not be reached for comment Tuesday. But in a letter responding to the ruling, Swan called on "male lawyers, and indeed all men" to "wake up and fight injustice before it's too late."

"There's an element in our society that is determined to bully men in the legal profession, in the workplace and everywhere else; and they won't be deterred by notions of fairness or any constitutional and other righteous principles," Swan wrote in a letter to The Times.

Artson declined to express an opinion on the reversal Tuesday, but said her office is considering an appeal. Stotler could not be reached for comment.

Stotler ruled that Swan violated a local federal court regulation that prohibits an attorney from acting in any way that interferes with a court's ability to administer justice.

She also ruled that the attorney violated California's State Bar Act, which requires an attorney "to abstain from all offensive personality."

Swan, who was joined by the American Civil Liberties Union, objected to Stotler's disciplinary action, saying it was unconstitutional because it limits an attorney's freedom of speech.

In an April 28 ruling, the appeals court agreed that the language "impugns 'female lawyers' and reveals a patently sexist attitude on the part of Swan." But the court found that his comments did not violate local regulations.

The court also decided it could not uphold Stotler's decision because the state law on which she based her ruling was unconstitutionally vague in its use of the term "offensive personality."

"As 'offensive personality' could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representations of their clients' interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute," according to the ruling.

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