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Tuesday, September 02, 2014

Ind. Courts - Insulting Names Don’t Belong in Lawyers’ or Judges’ Lexicons

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Two recent events caused me to think about what lawyers calls each other, and what judges call lawyers. There is arguably a big gray area here, but this post offers some thoughts worth considering.

What Lawyers Call Lawyers

A female attorney recently told me about an unpleasant conversation with opposing counsel. Although litigation is often not particularly civil, an older male lawyer went out of bounds by continually referring to her as “hon.” Even more troubling, this was not the first time she’s been called “hon” or “sweetie” by male lawyers.

Some might not mind—or may even enjoy—greetings like sweetie or dear from their server at a diner, but it’s not a professional way to greet another lawyer. Whether intended or not, “hon” and “sweetie” strike many as sexist. The same lawyer would never use those equivalent terms when referring to a male lawyer.

Lawyers should strive to be professional and civil—not merely ethical under the Rules of Professional Conduct. Nonetheless, calling an opposing lawyer “hon” or “sweetie” may well violate Rule 8.4(g). That rule prohibits “conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon” gender, among other things.

The Indiana Supreme Court has found violations of 8.4(g) for a lawyer who referred to someone as an “illegal alien” and another lawyer who asked a company representative if he was “gay” or “sweet” after hearing what she thought was a feminine-sounding voice.

Moreover beyond the Rules of Professional Conduct, lawyers could face sanctions if they engage in what a Maryland case refers to as “sexual trial tactics” that “undermine women litigators’ credibility, professionalism, and ability to represent their clients.” There, in a deposition of a female plaintiff who alleged the male defendant negligently infected her with genital herpes, the defendant’s male lawyer had the following exchange with the plaintiff’s female lawyer:

[Male Defense Lawyer]: It must have been in poor taste if [female lawyer] said it was in poor taste. It must have really been in poor taste.
[Female Plaintiff’s Lawyer]: You got a problem with me?
[Male Defense Lawyer]: No, I don’t have any problem with you, babe.
[Female Plaintiff’s Lawyer]: Babe? You called me babe? What generation are you from?
[Male Defense Lawyer]: At least I didn’t call you a bimbo.
The Maryland court aptly concluded: “While strategy and tactics are part of litigation, and throwing your adversary off-balance may well be a legitimate tactic, it is not legitimate to do so by the use of gender-based insults.”

What Judges Call Lawyers

Judicial Conduct Rule 2.3 requires judges to avoid words or conduct that manifest bias or prejudice—and to ensure lawyers in their courtroom do the same. A comment to the rule notes that manifestations of bias or prejudice includes “demeaning nicknames.” Rule 2.8(B) requires judges be patient, dignified, and courteous to lawyers, litigants, and others. A judge referring to a lawyer as “sweetie” or “hon” would surely runs afoul of these rules. Similar terms would also be a problem, and calling a young male lawyer “son” would seem inadvisable.

Although less of a concern, is it “dignified” to call lawyers by their first name during court proceedings? I was surprised when reviewing a transcript of a recent bench trial that the judge repeatedly referred to the female lawyer by her first name. Although seemingly less frequent, the judge also called the male lawyer by his first name. Although I’m not suggesting this is an ethical violation, I do worry how such familiarity might be perceived by the dozens of people sitting in the courtroom.

What Lawyers Call Judges

The expectation or unwritten rule for lawyers addressing judges seems easy: “Judge” or “Your Honor” on the bench and off-the-bench in the presence of other lawyers or clients. In social settings with judges who lawyers knew before they took the bench, first names are usually fine—and arguably less awkward for the judge. A recent article about the appointment of Chief Justice Rush quoted a lawyer: “I’m sure in Indianapolis she’s Chief Justice Rush. In Lafayette, she’s Loretta to everyone.”

The names we call each other say a lot about our professionalism and civility but also makes a difference in how others perceive us. In the courtroom, the formal labels are important to a dignified process. In many other settings, “Judge Smith” would much rather be “Mary” just as Professor Schumm would much rather be Joel.

Note: I hope to do a follow-up post that includes comments or stories from lawyers or judges. I encourage you to email me; we won’t use your name unless you insist.

Posted by Marcia Oddi on September 2, 2014 02:20 PM
Posted to Indiana Courts