Court Reverses Judge’s Decision Against Lawyer

A federal appeals court has reversed, for the second time, a Santa Ana judge’s decision to sanction a former Newport Beach defense attorney for making “patently sexist” comments to a female prosecutor.

Attorney Frank L. Swan contended that disciplinary action ordered by U.S. District Judge Alicemarie H. Stotler in 1993 was unconstitutional because it limited Swan’s freedom of expression.

Stotler had ordered Swan to write a formal apology to Assistant U.S. Atty. Elana S. Artson after ruling that a letter he wrote the prosecutor violated state and federal ethics and court codes.

The letter came after the prosecutor had persuaded the judge to disqualify Swan from representing an Orange family in a tax evasion case because of a conflict of interest.

Swan wrote the prosecutor: “I have something here that I think applies to you.” He enclosed an excerpt from a law magazine article on gender stereotypes that stated: “Male lawyers play by the rules, discover truth, and restore order. Female lawyers are outside the law, cloud truth and destroy order.”

Stotler ordered the matter be referred to a federal court disciplinary committee for review.

Swan appealed the judge’s decision, and he was joined by the American Civil Liberties Union of Southern California, which also contended that Swan’s free speech rights were violated.

The U.S. 9th Circuit Court of Appeal in Pasadena originally reversed the judge’s sanctions against Swan on April 28, 1995, but the State Bar of California and the state intervened and asked for another hearing.

In a ruling last week, the appellate panel again ruled that while Swan’s statements to Artson were “patently sexist,” the judge could not impose sanctions.

The court said a state law used by the judge to uphold her decision was unconstitutionally vague in its use of the term “offensive personality.” The court also said the attorney’s statements involved an “isolated expression of a privately communicated bias” that did not hurt the administration of justice in any case.

Swan, now practicing in Escondido, declined to comment Tuesday on the ruling.

Carol Sobel, senior staff counsel with the ACLU of Southern California, said: “We are very concerned about bias in the judicial system, but we think it’s important there be standards and the standards be clear.”