Judge Sanctions Male Lawyer for Remarks to Female Prosecutor : Ruling: U.S. jurist orders an attorney to write an apology for a letter that said: ‘Female lawyers are outside the law, cloud truth and destroy order.’ The matter is referred to a disciplinary panel.

An Escondido lawyer has been sanctioned by a Santa Ana federal judge for making derogatory, gender-biased comments to a prosecutor during a tax evasion case.

In a ruling released Wednesday, Judge Alicemarie H. Stotler ordered attorney Frank Swan to write a formal apology to Assistant U.S. Atty. Elana S. Artson and referred the matter to a federal court disciplinary committee for review.

Stotler acted in response to a motion filed by the U.S. attorney’s office objecting to a letter Swan sent to Artson. The letter came after the government convinced the judge that Swan should be disqualified from representing a client in the tax case because of a conflict of interest.

Swan’s May 3 letter to Artson contended that his disqualification was unfair to the defendants, who later retained other lawyers, and said it would make the case easier for her. Appended to the letter was a sheet of paper with the following statement in large block letters: “Male lawyers play by the rules, discover truth and restore order. Female lawyers are outside the law, cloud truth and destroy order.”

In a stinging opinion, Stotler ruled that Swan violated a local federal court regulation that “no attorney shall engage in any conduct which degrades or impugns the integrity of the court or in any manner interferes with the administration of justice.” She also ruled that he had violated California’s State Bar Act, which requires an attorney “to abstain from all offensive personality.”

Stotler wrote: “The Court finds that Mr. Swan’s gender-biased remarks impugn the integrity of the Court and the judicial system and interferes with the administration of justice, just as would written or verbal assaults based on race, color, national origin, religion, physical disability, age or sexual orientation.”

The ruling was the first in which an attorney has been publicly sanctioned for “gender-biased” comments in the central district of California, which spans seven southern California counties from Riverside to San Luis Obispo, said USC law professor Judith Resnik, one of the principal authors of a report on gender bias in federal courts in the western United States.

In support of her decision, Stotler cited a 1990 Sacramento federal court decision where a male lawyer was sanctioned for making offensive comments to a female attorney in a bankruptcy case.

Wednesday’s ruling is part of a trend toward sanctioning such comments, said New York University law professor Stephen Gillers, an expert on the regulation of lawyers.

“There has been a minor avalanche of such decisions around the country,” he said. “Two decades of committees and commissions on bias in the profession have kindled a climate of intolerance for intolerance. What was once thought comical or tactical . . . became gauche, then rude, then crude and finally costly.”

For example, Gillers said, a New York attorney had been fined $1,000 for five sexist comments he made to an opposing female lawyer during the taking of a deposition.

Saying “I don’t have to talk to you, little lady,” and telling another person in the room, “Tell that little mouse over there to pipe down,” were among the sanctioned comments made by the New York lawyer.

Swan said his comments were protected under the 1st Amendment and argued that bringing disciplinary proceedings against him would chill free speech and “be too high a price to pay for the fragile sensibilities of an offended lawyer.” He also contended that he did not violate the State Bar Act because “offensive, private ‘lawyer-to-lawyer’ talk is not prohibited by the act.

The judge rejected both contentions. Stotler said the fact that the comments were made in a letter rather than in open court had no legal significance. On the 1st Amendment issue, the judge cited a 1991 Supreme Court decision, which says, in part, that “the speech of those participating before the courts could be limited.”

Stotler also said: “This motion is not a mere exercise in political rectitude. It deals with a problem sadly common in American society today--no respect for the individual and a wrong-thinking approach to humankind. . . .”

Resnik praised the ruling as “a wonderful model” of how a judge can come to grips with gender bias problems.

But Los Angeles criminal defense lawyer Harland Braun, who has fought a number of gag orders that judges attempted to impose on him in high profile cases, called the decision disturbing.

“The cure is worse than the vice. . . . I could see how if a lawyer is making public statements that could impact a jury, they could impose some limitations,” Braun said. “But these comments were made in a private letter.”