From the now-I’ve-heard-everything category, there is this: A plaintiff in a federal action claims that during the course of a mediation of her employment discrimination case, counsel for the defense–a partner with a major international law firm– allegedly “shook his butt” at plaintiff’s counsel while uttering profanity. Plaintiff demands sanctions of $7,000 for the alleged, er, exposure. For its part, the defendant denies that its (now former) counsel engaged in any such lascivious gyrating of the lower fleshy extremities. The defense just wants the booty-shaking issue to go away; they recently wrote (and I am not making this up) that the court should “put this unfortunate episode in the rearview mirror.”
In 2019, plaintiff, Alclair White, sued Chevron in federal court in Texas alleging the company fired her after 36 years of employment because of her gender, age, and disability, in violation of federal law. Ms. White was represented by Alfonso Kennard, Jr.
Chevron retained attorneys from Baker & Hostetler to defend the case, and partner Dennis P. Duffy was identified as lead counsel.
The Court required the parties to attend a mediation, which occurred on August 21, 2019. On February 11, 2020, plaintiff filed a motion for sanctions.
In her sanctions motion, plaintiff alleges that during the mediation, Mr. Duffy engaged in “abusive conduct” and “made remarks and gestures . . . that were unprofessional and disrespectful to Plaintiff’s counsel.” The alleged “abusive language and gestures” was described as:
- Mr. Duffy shaking his behind in front of Plaintiff’s counsel.
- Mr. Duffy asking Plaintiff’s counsel “do you want to fuck me.”
- Mr. Duffy making inappropriate remarks regarding Plaintiff’s counsel’s hairstyle. Mr. Duffy stated, “Do you want to fuck me? You have a ponytail haircut, I figured you wanted to fuck me . . .”
Plaintiff moved for costs incurred in connection with the alleged misconduct, including fees for filing the sanctions motion.
In an amended sanctions motion, Plaintiff expanded on her claims and alleged that Mr. Duffy “has embarked on a campaign of abusive and intolerable conduct that began with profanity-laced conversation, which escalated to discriminatory slurs, and culminated into an explicit rhetoric against Plaintiff’s attorney.” In addition to monetary sanctions, plaintiff sought an order disqualifying Duffy.
On February 20, Chevron filed an unopposed motion to withdraw Duffy and the Baker Hostetler firm as defense counsel and to substitute attorneys from Norton Rose Fulbright.
Also on February 20, Chevron filed a response to the motion for sanctions. In its 3 1/2 page opposition, new counsel for Chevron asserted that the “exchange” that took place occurred during a confidential mediation proceeding. Thus, Chevron argues, the “statements” made during the mediation are inadmissible.
Interestingly, Chevron’s brief provides no legal support for the proposition that gyrating one’s rear end in a promiscuous manner, also known as “twerking,” as alleged by plaintiff, constitutes a “statement” or “communication” that is inadmissible pursuant to the Texas Alternative Dispute Resolution Act. Defendant contends simply that “resolving the merits of Plaintiff’s Motion would compel further violations of the Texas ADR Act and could only be resolved with inadmissible evidence.”
Notably, the opposition does not offer any evidence to dispute what Duffy allegedly said, and allegedly did, during the mediation. No affidavits or declarations, for example, were submitted by Mr. Duffy, the mediator, or anyone else regarding what actually transpired at mediation. Thus, the only evidence that exists so far are the unadorned accusations by plaintiff and the equally unadorned response by the defendant’s replacement counsel.
In a footnote in its sanctions opposition, Chevron criticizes the allegations made by plaintiff’s counsel as “not substantiated” and states that it “understands that Plaintiff mischaracterizes the encounter” but then adds that “whether the allegations are mischaracterized is irrelevant and should not be adjudicated . . .” because doing so allegedly violates mediation confidentiality.
We will see.
Generally speaking, mediation confidentiality can be very broad depending upon the jurisdiction. Whether mediation confidentiality or mediation privilege is so broad as to prohibit a court from inquiring about or taking action regarding any and all conduct occurring during the mediation, however gross and however tangential to the merits of the proceeding, remains a matter for the court to decide. It is difficult to fathom that a mediation, because of confidentiality, can be treated as a playground where all manner of insults can be hurled without consequence. That seems a bit much.
Practitioners should be aware that using foul and abusive language towards others could be grounds for professional discipline. As we wrote in our blog here, in In re Andrew Y Schroeder, a patent attorney filed in the USPTO a number of uncivil and disparaging remarks directed to the examining attorneys involved in cases he was prosecuting. In one matter, Schroeder accused the examiner of being drunk and using crack. In another case, he stated the examiner was an “idiot, lazy, incompetent, blind, stupid [and] worthless.”
As one might imagine, those remarks did not go over well with the Office. The USPTO suspended the attorney for six months for engaging in disreputable and gross misconduct. The Court warned practitioners about the dangers of sending discourteous and unprofessional emails:
Modern technology has spawned a generation predisposed to instant gratification and instant expression. In doing so, it has also created a new menace. Today, the most dangerous four-letter word in the English language may very well be “send.” The ability to file documents electronically to USPTO does not absolve patent practitioners of their responsibility to consider their words carefully before they press that final button.
Stop. Think. Wait.
Mark Twain once wrote that, “Anger is an acid that can do more harm to the vessel in which it is stored than to anything on which it is poured.” These words are just as true today. It is too easy to send an email or other electronic communication in the “heat of the moment.”
In an article published in Psychology Today entitled “Avoiding the Angry Email – Why We Should Think Twice Before Firing Off that Rage Filled Message,” the author notes that the “electronic format worsens impulse control problems because its too quick and easy” and recommends treating emails (or, as in this case, electronic filings) like a letter. Simply put, wait before you send it. And have it read by someone else.
The Schroeder opinion reminds us once again that we as lawyers have a duty of civility and professionalism. One can be an effective advocate without behaving like a complete jackass.
Obviously the case involving Mr. Duffy and the alleged mediation behavior did not arise from an unwise email. In some respects, Duffy’s alleged misconduct was worse than Schroeder’s angry emails, since it occurred during a court-ordered mediation proceeding.
Lawyers have a professional obligation to be civil with opposing counsel, parties and the tribunal. We can disagree without being disagreeable, and we can certainly advocate zealously on behalf of our clients without slinging f-bombs or “twerking” in the face of our adversaries.
Hat tip to Law360 for its coverage of the sanctions motion.