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ericfruits · 4 years

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Street Fighting Man Gets Cultural Sensitivity Training

If you follow this blog you know it has been a quiet few days on the bar discipline front lines.

A decision from Colorado breaks the monotony

Robert E. Abrams (“Respondent”) was hired by a married couple to file a construction contract lawsuit against their former builder. During the course of the litigation, Respondent developed a negative opinion of the judge presiding over the case. In an email to his clients, Respondent referred to the judge using a derogatory slur that exhibited bias or prejudice on the basis of sexual orientation, thereby violating Colo. RPC 8.4(g). Respondent ultimately secured a favorable outcome for his clients, but the relationship soured and Respondent withdrew from the representation. His clients reported him to the disciplinary authorities. After responding to the clients’ disciplinary grievance, Respondent charged them for the time his firm spent preparing a response in the disciplinary matter. Respondent did not reverse those charges for thirteen months. He thus violated Colo. RPC 1.5(a). Respondent’s misconduct warrants a suspension of three months, all stayed upon the successful completion of an eighteen-month period of probation, with conditions to include cultural sensitivity training.

Respondent

Respondent, sixty-one, testified that he grew up in Highland Park, Illinois, the son of a “working man” who owned pawn shops in the Chicago “ghettos.” Respondent recounted that he enjoyed an upper-middle class suburban upbringing. He also recalled, however, frequently being picked on—and fighting back—because he was small. His ethos was “you come on me and I’m coming right back.” As a result, he developed what he characterized as a “certain Chicago street sense,” whereby “you’re going to fight to succeed or you are going to die.” These formative experiences helped shape Respondent’s self-conception as a “Chicago street fighter.”

As to the Rule 8.4(g) violation

we conclude that Respondent knowingly used the word “f[*]g” in an email to the Baleses when referencing Judge Douglass. Respondent undoubtedly used that term during his representation of the Baleses. He used that term about Judge Douglass, a participant in the legal process. He knowingly typed that term. He knew the common meaning of the term, he knew the term is derogatory, and he knowingly used the term in a derogatory manner. What remains is to determine whether the term exhibited bias or prejudice on the basis of sexual orientation.

The People and Respondent part ways on this question as well. Respondent rails against what he views as the People’s attempts to corral his use of language according to their own standards. Their definition of the term “f[*]g” should not rule the day, he implies, as the word has many meanings and interpretations, including his own putative understanding of the term, which was influenced by the idiosyncrasies of his upbringing in Highland Park five decades ago. This is the definition he had in mind at the time he penned the March 2016 email, he claims. The People urge the Hearing Board to reject this etymological “sophistry.” They argue that “[r]egardless of what the phrase ‘gay, fat, f[*]g’ may have meant in the 1700s in Britain, the U.S. in the 1920s, or Chicago in the 1970s, it defies belief that Respondent did not know how a reasonable person would understand it when Respondent said it in 2016—as a derogatory phrase relating to the sexual orientation of a male.”

We find the People have proved by clear and convincing evidence that Respondent violated Colo. RPC 8.4(g). The language Respondent uses in his March 2016 email, the context in which the email was written, and Respondent’s own life experiences belie his argument. As an initial matter, Respondent did not use the word “f[*]g” standing alone. The term is preceded by the word “gay,” a common term for a person attracted to members of the same sex. And Respondent explained that he equated the word “f[*]g” with the term “homo,” another disparaging and offensive slang word for a gay man.

Sanction

The lawyer discipline system does not regulate bigotry. It regulates action. Here, we do not find that Respondent is a bigot or is biased. We find only that he engaged in conduct that exhibited bias, thereby violating his duties to the legal profession and the legal system to treat participants in the legal process with respect and dignity. We also find that he improperly charged his clients fees for responding to their grievance. These violations lead us to conclude that Respondent should be suspended for three months, all stayed on successful completion of probationary conditions.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/03/if-you-follow-this-blog-you-know-it-has-been-a-quiet-few-days-on-the-bar-discipline-front-lines-a-decision-from-colorado-br.html

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