Disqualified Lawyer Appeals Judge’s Sanctions : Courts: Attorney and ACLU contend that disciplinary action for gender-based comments made to female prosecutor is unconstitutional.

A defense lawyer has appealed sanctions by a Santa Ana federal judge for making derogatory, gender-based comments to a female prosecutor during a tax evasion case.

Escondido attorney Frank L. Swan and the American Civil Liberties Union contend that disciplinary action ordered by U.S. District Court Judge Alicemarie H. Stotler in September is unconstitutional because it limits the attorney’s freedom of expression.

Swan declined to comment on the case Tuesday.

Stotler ordered 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’s action came after Artson convinced the judge that Swan should be disqualified from representing an Orange family in a tax evasion case because of a conflict of interest.

After the judge disqualified Swan, the former Newport Beach attorney wrote a cryptic letter to Artson, stating: “I have something here that I think applies to you.” He enclosed an excerpt from a law magazine article that states: “Male lawyers play by the rules, discover the truth and restore order. Female lawyers are outside the law, cloud the truth and destroy order.”

Prosecutors objected to the letter in court, resulting in Stotler’s censure.

“Such gender-based attacks have no relevance to the competency of counsel or the legitimate criticism of another attorney’s performance,” Stotler wrote in her order. “These remarks cannot go unsanctioned because the courts of the United States are premised on the equality of all who appear before them.”

The judge said Swan’s comments to Artson violated the “offensive personality” statute of the California Business and Professions code, which guides the conduct of attorneys.

In a brief filed with the 9th U.S. Circuit Court of Appeals, the ACLU challenged the constitutionality of the judge’s ruling. The organization’s attorneys said Swan’s action could not impugn the integrity of the proceedings because Swan’s comments were made after he was removed from the case.