Legal Ethics

Lawyer's 'succubustic' claim should be reported as gender bias to state bar, court concludes

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A California appeals court is reporting a San Diego lawyer to ethics regulators for calling a female judge’s opinion “succubustic” in a notice of appeal that used other questionable wording.

The Fourth District Court of Appeal said last week that it was reporting Benjamin Pavone to the state bar for manifesting gender bias, report the Recorder and Bloomberg Law.

“A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep,” the appeals court said in its Feb. 28 opinion. “We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

The court said Pavone also made unsupported charges that the judge tried to evade appellate review and intentionally refused to follow the law. Both accusations, made in the appeal notice and briefs, are reportable misconduct, the appeals court said.

The trial judge targeted by Pavone had denied his request for attorney fees after he won about $8,000 for his male client in a sexual harassment suit against his employer.

Pavone’s client had answered a job ad seeking employees in the real estate sector of the financial services industry. But he was hired instead to work as a personal assistant at the home of a man who made sexual advances and asked him to go on a same-sex cruise.

The trial court also had tossed the fraud claim of Pavone’s client and refused to grant an injunction for unfair advertising and unfair business practices.

Pavone had sought more than $160,000 in attorney fees for his work on the sexual harassment claim and appeal.

Pavone’s “succubustic” accusation wasn’t the only attack on the judge’s opinion, the appeals court said. His notice of appeal referred to the judge’s “disgraceful order” and appeared to suggest it was vomit-inducing.

Pavone had written: “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.”

The appeals court said many of the words and phrases in the notice of appeal “have no place in a court filing.”

“We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words disgraceful, pseudohermaphroditic misconduct or reverse peristalsis in the notice of appeal,” the court said.

The trial judge had denied attorney fees because of an exception to the prevailing party law for lawsuits that could have been brought as a limited civil case. The judge said Pavone had overlitigated the case, did not have detailed billing records, had “engaged in fruitless litigation,” and was “spectacularly unsuccessful.”

The judge also said there were serious questions about Pavone’s reconstructed billing records, given his estimate that he spent one 25-hour day on the case and several 15-hour days.

The trial judge did not err in their fee ruling, the appeals court said.

Pavone told the Recorder that the judge had questioned his honesty with regard to billing records, and those accusations have been proven false. “It is not reasonable to assume a self-respecting lawyer will stand for being unfairly accused and morally impugned and not fight back,” he said.

Pavone said he had made only a “vague sexual reference,” although he wouldn’t write the same thing if given the chance of a do-over.

“The criticism would have been more strictly academic in nature” if he could rewrite it, Pavone said.

The case is Martinez v. O’Hara.

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