The Annals of Jurisprudence: Minnesota Discipline for Bad Words

A PRELUDE - from HMS Pinafore by Gilbert & Sullivan

CAPT.
Bad language or abuse,
I never, never use, 
Whatever the emergency; 
Though “bother it” I may 
Occasionally say, 
I never use a big, big D--

ALL.
What, never?

CAPT.
No, never!

ALL.
What, never?

CAPT.
Hardly ever!

ALL.
Hardly ever swears a big, big D-- 
Then give three cheers, and one cheer more, 
For the well-bred Captain of the Pinafore! 
Then give three cheers, and one cheer more, 
For the Captain of the Pinafore!

I.    EDITORIAL PRINCIPLES FOR THIS ENTRY

A.   Why? Why this causerie? It is partly a lighthearted, dog-days-of-summer, why-not effort. It may also be useful to disciplinarians and respondents who may be concerned with consistency when a new use of bad words occurs, as it surely will.

B.   In or Out? Included in this blog are words that are profane, or scatological, or intrinsically abusive. Some words are excluded because they are offensive only in context, e.g. gratuitously asking a witness if she is gay. Words that might be called sharp comment or out-of-place humor are not included.

C.   Bowdlerizing. Gilbert & Sullivan’s use of “big, big D—” is an example of “bowdlerizing,” that is expurgating offensive words, for civility’s sake. (After Thomas Bowdler, a 19^th century British editor.) 

D.   Who bowdlerizes? The Minnesota Supreme Court, the Office of Lawyers Professional Responsibility and the Board on Judicial Standards have all occasionally bowdlerized when issuing disciplines for bad words. Be forewarned - Minnesota Legal Ethics and this blog do not bowdlerize.

II.   NOT SO BAD WORDS

A.   “Damn”

1.      Counsel used the word “damn” during argument. Judge Michael Davis sanctioned counsel in the amount of $500. The court explained, “The Court makes the express determination that Mr. Hull’s use of the word “damn” is appropriately sanctionable, in that it was outside the realm of acceptable conduct. A curse word has no place in the courtroom, especially where its sole purpose is to drive home the point of an assertion. See, e.g., Pintagore [sic] v. Montgomery Ward & Co., 419 F.2d 1138, 1142 (6th Cir. 1969).” Counsel wrote an apology and the fine was vacated. Nelson v. Ellerbe Becket Construction Services, Inc., 2002 WL 31571177 (D. Minn., Nov. 15, 2002).

2.    On the other hand, it has often been said without offense, outside the courtroom, “About half the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1202 (7^th Cir. 1987) (quoting 1 Jessup. Elihu Root 133 (1938). Outside the courtroom, lawyers need not be angels, so long as they are not devils.

B.   “Pissed” A private warning was issued to a judge who used this word in court. Board on Jud. Stds. File 00-70.

C.   “Bloodthirsty Hypocrites” When this “outburst” by a judge occurred – in reference to colleagues on the bench -- it could not be condoned, but it was “at least understandable.” In re Miera, 426 N.W.2d 850, 857 (Minn. 1988). However, when the judge repeated the comment, it made the court “question whether he appreciates his obligation to maintain a judicial demeanor even under trying circumstances.” Id. at 858.

III.  DISCIPLINARY FACTORS

A.   Frogs die in earnest. The Minnesota Supreme Court offered a convincing literary explanation of why throwing bad language at someone is intolerable in at least some circumstances, “We are mindful of Plutarch’s wise observation: ‘Tho’ boys thro’ stones at frogs in sport, the frogs do not die in sport, but in earnest.” In re Kirby, 354 N.W.2d 410, 415 (Minn. 1984).

B.   Some latitude for lawyers. For lawyers, “There is a continuum of name-calling, very few of which warrant public discipline; a few more which result in private discipline, and most of which are dismissed.” Candice M. Hojan, “Sticks and Stones. . .”, MINN. LAW., Feb. 7, 2000. There are, however, limits. Some words are so offensive that they warrant public discipline, by themselves. See In re Williams, 414 N.W.2d 394, 399 (Minn. 1987) (“sheeny Hebrew” to a Jewish lawyer, at deposition, by itself warrants public reprimand.) Other limits include profane or very offensive language to certain persons, such as the court or an opposing party.

C.   Bad words in court. “It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991) (citation omitted). Contemptuous, profane words spoken by a lawyer, in a courtroom, to or about a judge, may well be severely disciplined. See In re Paulsrude below. Similarly, a lawyer was suspended for multiple acts of disruptive conduct, including calling a Lawyers Board hearing panel chair, “a disgrace to our profession.” In re Williams, 414 N.W.2d 394, 398 (Minn. 1987).

D.   Provocation. In the Miera case, above, and the Williams case, below, the Minnesota Supreme Court made allowances for harsh words that were provoked by others’ conduct.

IV.   JUDGES AND LAWYERS

A.   Bad words by the court. Judges, especially when speaking in the courtroom, are held to a higher standard than lawyers. “Judges must conform to a higher standard of conduct than is expected of lawyers or other persons in society.” In re Miera, 426 N.W.2d 850, 855 (1988), citing Complaint Concerning Winton, 350 N.W.2d 337, 340 (Minn. 1984). “Profanity” is one of the categories of alleged improper conduct that is tracked in the Board on Judicial Standards Annual Reports.

B.     “Jerk” OK for lawyers, not for judges. A good example of higher standards for judges is found in use of the word “jerk.” A judge was publicly reprimanded for addressing this epithet and, apparently, “asshole,” to a defendant. Board on Jud. Stds. File 08-87. On the other hand, when a lawyer called someone a “contemptible little jerk,” the conduct did not rise to the level of discipline. Candice M. Hojan, “Sticks and Stones. . .”, MINN. LAW., Feb. 7, 2000.

V.  IMPERFECT POSTERIOR

A.   “Horse’s Ass.”  A lawyer was disbarred for numerous Rule violations, including in-court statements that one judge was “a horse’s ass” and another judge ran “a kangaroo court.” In re Paulsrude, 331 Minn. 303, 305–06, 248 N.W.2d 747, 748 (1976).

B.       “Bullshit.” A public reprimand was issued to a judge who used this word in court. In re Armstrong, Board on Jud. Stds. File 98-18.

C.   “Kiss my fucking ass.” In In re Gardner, 707 N.W.2d 388 (Minn. 2006), Gardner received a public reprimand for three counts of misconduct, one of which, in a domestic abuse/divorce matter, involved Gardner stating first to opposing counsel Meyer alone, then to Meyer in front of Meyer’s client and others, in the court house, “Kiss my fucking ass. You are being used as a tool of the devil.” The petition for disciplinary action characterizes the language only as “a graphic expletive,” and the Court’s Order adopting the stipulated disposition characterized the conduct as “profanity to opposing counsel.” However, the file is available to the public, and it discloses the above language, which Gardner admitted using.

D.   “Asshole.” A judge was publicly reprimanded for apparently addressing this epithet and “jerk” to a defendant. Board on Jud. Stds. File 08-87.

E.   “Up yours.” Two references by a lawyer to “shoving this case up my butt” warranted an admonition. Kenneth L. Jorgensen, Summary of Admonitions, BENCH & B. OF MINN., Apr. 2003. Another lawyer was admonished for saying, “up your ass,” to an opposing party. Betty M. Shaw, Ways to Get in Trouble Harassing a Third Party, MINN. LAW., May 17, 1999.

VI. OLD BOY TALK

A.   Boys Throwing Stones. “Boys” may be emphasized in “Tho’ boys thro’ stones at frogs in sport, the frogs do not die in sport, but in earnest.” In re Kirby, 354 N.W.2d 410, 415 (Minn. 1984).  A respondent’s counsel once confided in the Director, a propos of his client’s statements, “Sometimes it’s embarrassing to be a member of our gender.”  Perhaps not coincidentally, all the bad words quoted in this blog were uttered, or in some cases shouted, by men.

B.   “Lawyerettes” and “Attorney Generalettes.” A judge was censured for several types of misconduct, including these discourteous references to female attorneys. In re Kirby, 354 N.W.2d 410 (Minn. 1984).

C.   “Slut of Pleasantville.” A lawyer was admonished for referring to opposing counsel or a party as the “slut of Pleasantville.” Betty M. Shaw, Ways to Get in Trouble Harassing a Third Party, MINN. LAW., May 17, 1999.

D.   “Bitch.”

1.    In court. An admonition was issued to a lawyer who stated in court to opposing counsel, “You bitch,” and referred to her as “persecutor” rather than “prosecutor.” Marcia A. Johnson, “Uncivil” Practice, BENCH & B. OF MINN., Apr. 1994.

2.      Overhearing? This principle was extended in a questionable way. An admonition was issued to a lawyer who wrote “stupid bitch” on a document repeatedly, and inadvertently filed the document with the court. Id. “The attorney received an admonition . . . primarily because the letter containing the comment was placed in the office file where the attorney’s entire office staff had access to it.” Id. Candice M. Hojan, “Sticks and Stones. . .”, Minn. Law., Feb. 7, 2000, at 2, 2. On OLPR’s theory, a lawyer who blows off steam in a way that “could have been” heard by a colleague or secretary, then decides not to excoriate opposing counsel to her face, would nonetheless violate the Rules.

E.   “Fuck you! You son of a bitch!” An admonition was affirmed where a lawyer uttered these words to a person who had filed an ethics complaint against the lawyer. The lawyer violated Rule 8.4(d) (conduct “prejudicial to the administration of justice”). Appeal of Admonition Regarding A.M.E., 533 N.W. 2d 849 (Minn. 1995).

F.    “Rotten son of a bitch!” OK when provoked. Because of an “understandable provocation” – these words were Rosen’s rejoinder to Williams’ “sheeny Hebrew” slur – there was no equal protection violation in disciplining Williams but not Rosen. In re Williams, 414 N.W.2d 394, 398 (Minn. 1987).

G.   Really bad language. In the case of In re Starr, 577 N.W.2d 210 (Minn. 1997), a lawyer was publicly reprimanded for stating to opposing counsel, during a pre-trial and in front of others, that she was a “fucking cunt” and she should “shut up.” The court called this “a derogatory expression,” but the discipline petition quoted the epithet.