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Lawyer Draws One-Month Suspension for Potshots
State Bar Court Judge Says Reference to Court Commissioner As ‘Succubustic’ Was Constitutionally Protected
By a MetNews Staff Writer
The State Bar Court has responded to the Court of Appeal’s call for disciplining a lawyer who, in a notice of appeal, likened a San Diego Superior Court commissioner to a mythological female demon with unusual sexual proclivities, recommending that the California Supreme Court suspend Benjamin Laurence Pavone from practice for one year, place him on probation, and impose one month of actual suspension—but not for his one-liner.
The discipline of Benjamin Pavone, recommended by State Bar Court Judge Cynthia Valenzuela, was founded on the lawyer questioning the bench officer’s integrity without justification, not based on his reference to then-Commissioner Carmen R. Luege (now a judge) as “succubustic.” That, Valenzuela, said is protected speech.
Her Feb. 10 opinion came to light yesterday when Pavone sent an email to the METNEWS, the ABA Journal, and 12 other news outlets attaching three pages of Valenzuela’s 16-page opinion—the portion relating to charges the judge dismissed—and urged that online news accounts of the Court of Appeal opinion that lambasted him be taken down.
Fybel’s Opinion
The news stories related to a Feb. 28 opinion by Acting Presiding Justice Richard D. Fybel in the case of Martinez v. O’Hara. He wrote:
“[A]s required by the California Code of Judicial Ethics, we are reporting plaintiffs attorney, Benjamin Pavone, to the California State Bar for manifesting gender bias. The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. 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 sentence in the notice of appeal containing the offensive term reads: “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.”
Fybel continued:
“We also report Mr. Pavone to the State Bar for the statement in the notice of appeal suggesting the trial court attempted to thwart service of the signed judgment on plaintiff in an effort to evade appellate review and statements in the appellate briefs he signed on behalf of plaintiff accusing the judicial officer who ruled on the motion for attorney fees of intentionally refusing to follow the law. None of these serious charges is supported by any evidence.”
The jurist said Pavone was being reported based on Business & Professions Code §6068(b) which requires that an attorney “maintain the respect due to the courts of justice and judicial officers.” He remarked, in a footnote, that if California Rules of Professional Conduct, rule 8.4.1, which bars gender bias by an attorney, had “been in effect at the time the notice of appeal was filed, Pavone’s reference to the judicial officer’s ruling as ‘succubustic’ would have constituted a violation of that rule as well as misconduct under section 6068….”
Valenzuela’s Decision
Valenzuela declared that Pavone’s use of the term “succubustic” does not give rise to discipline, explaining:
“[T]he comment consisted of loose, figurative language….No reasonable reader would surmise that Respondent was claiming that either Judge Luege or her ruling was literally a succubus, which is a mythical creature. As such, distasteful as it is, this comment was made figuratively, representing rhetorical hyperbole, and consequently is protected by the First Amendment.”
The comment, she said, constituted an expression of an opinion that the commissioner had “mindlessly sided with the defendants.” Also an opinion, Valenzuela observed, was the characterization by Pavone of an order for attorney fees as “disgraceful.”
The opinions, she wrote, were “unnecessary to the context, disrespectful, and plainly directed at Judge Luege” and were “entirely unsupported by any evidence before this court.” Nonetheless, the judge continued, “these opinions did not ‘imply a false assertion of fact,’ as required to evade the First Amendment’s protection.”
She dismissed a count based on the comments, as well as a count predicated on Pavone’s statement that he had not received a copy of a judgment, believing his assertion to that effect.
Sustained Counts
However, two counts predicated on assertions to the Court of Appeal that Luega had acted unethically were not constitutionally protected, Valenzuela determined. She wrote:
“Respondent disparaged Judge Luege and, by extension, the court system, repeatedly in two appellate filings falsely accusing Judge Luege of intentionally refusing to follow the law due to bias and impartiality. The court is mindful of the importance of free speech and of the public value in identifying and removing dishonest judges from office….But, indiscriminate accusations like Respondent’s do not serve that function. Indeed, they make it more difficult to distinguish those judicial officers who have behaved corruptly from those who have been unfairly maligned for making difficult but necessary decisions in service to the rule of law.
“Misconduct of this nature fundamentally undermines public confidence in the justice system….Unfounded attacks on the judiciary erode respect for the institution and the rule of law. Respondent’s baseless attacks on the courts are especially harmful because his voice, as an attorney criticizing the justice system, is more powerful than those of non-attorneys. By falsely vilifying and attacking the integrity of a judicial officer, he tarnished confidence in the courts, causing intangible but irreparable harm. This is a significant civic injury, as courts rely on the public trust for legitimacy and viability.”
Pavone’s Letter
Pavone said in a letter bearing the salutation, “Dear ABA Journal and Other Trade Legal Media,” that the “legality” of his remark using the term “succubustic” has “been ruled on by an ethics judge,” adding that “the statement falls within the First Amendment’s rhetorical hyperbole doctrine, as found by the ethics court.” He noted that the “charge has now been dismissed.”
The lawyer, in requesting that each of the recipients remove its news report on Fybel’s opinion from the Internet, said:
“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. 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.”
Pavone has the option of contesting the discipliner in the State Bar Court Review Department and in the California Supreme Court.
Copyright 2022, Metropolitan News Company