California Lawyer Fights Discipline for Disparaging Judge

A California attorney is fighting potential state bar discipline against him for making insulting comments about a female judge, arguing to a federal court he’s shielded by the First Amendment.

Benjamin Pavone of Pavone & Fonner LLP represented the plaintiff in an employment law suit. The jury awarded his client $8,080 in damages for sexual harassment, but the court dismissed his fraud claim and rejected his claims seeking an injunction for unfair advertising and unfair business practices. It also denied Pavone’s request for $146,634 in attorneys’ fees.

In Pavone’s notice of appeal, he said the ruling was “disgraceful,” “succubustic,” validated the defense’s “pseudohermaphroditic misconduct,” and implied it made him want to vomit. He also suggested the trial court judicial officer tried to evade appellate review.

The California Court of Appeal, Fourth District, affirmed the denial of attorneys’ fees and reported Pavone’s conduct to the California bar.

The bar’s office of chief trial counsel enforcement began a formal disciplinary process, charging him with “impugning the honesty, motivation, integrity, or competence of the trial court judicial officer” by accusing her of intentionally refusing to follow the law due to bias against him, and accused him of manifesting gender bias in his language.

This notice violates Pavone’s “First Amendment and Fourteenth Amendment rights to due process in that it infringes on permissible advocacy of a practicing attorney,” he argues in a complaint to the U.S. District Court for the Central District of California.

Pavone says he “used a colorful (or caustic, depending on one’s viewpoint) metaphor to criticize a court ruling,” but that “lawyers are as a matter of First Amendment advocacy and freedom of thought and speech, entitled to choose any of the reasonable inferences from the evidence of a decision, as they believe most conforms to the truth.”

Cause of Action: First Amendment, 14th Amendment.

Relief Requested: Injunction stopping the bar from sanctioning him; a declaration that a clause in California’s Business and Professions Code requiring attorneys to “maintain the respect due to the courts of justice and judicial officer” is unconstitutionally vague and unenforceable.

The case is Pavone v. State Bar of California, Office of Chief Trial Counsel Enforcement, C.D. Cal., No. 2:20-cv-07193, complaint filed 8/11/20.