A Culprit in the Courts : Sex bias is alive in the legal world, and it draws fire from a federal judge

Any notion that gender bias in the courts has been put to rest merely by having more women in the legal profession would be mistaken. A Santa Ana federal judge’s eloquent reprimand of an Escondido lawyer, who voiced more than sour grapes when he was removed from a tax case on a conflict-of-interest finding, is a case in point.

The lawyer, Frank Swan, now must write the apology he surely owes to Assistant U.S. Atty. Elana S. Artson, and also must be subjected to a review by a federal court disciplinary committee.

Judge Alicemarie H. Stotler took an extremely dim view of Swan’s outrageous assertion that “Male lawyers play by the rules, discover truth and restore order. Female lawyers are outside the law, cloud truth and destroy order.” The statement was made on a sheet of paper appended to a letter Swan sent to Artson complaining about his disqualification from the case.

When the matter was referred to Stotler, she noted how unfortunate it was that this kind of demeaning nonsense remained so prevalent in American society. Her sanction was, she said, “not a mere exercise in political rectitude.”

Basing the sanction on a local federal court regulation, and also on a state law requiring an attorney “to abstain from all offensive personality,” the judge found Swan’s missive a slap in the face not only to women but to the entire court system and an interference with its administration, to boot. It was, she wrote, not much different from other forms of discriminatory speech.

For the courts, the Swan incident sadly underscores the findings of the final report of the 9th Circuit Gender Bias Task Force, released last month. The task force, created by the federal courts for the nine western states in the 9th Circuit, including California, found that sexism, while often subtle, is pervasive in the interactions among litigants, lawyers and judges.

Judge Stotler’s observations, and the sanction imposed, were warranted as a way of responding to a problem that, unfortunately, the courts have not yet managed to get beyond.