Appeals court strikes down 'offensive personality' statute

A California statute requiring attorneys to "abstain from all offensive personality" is unconstitutionally vague, a federal appeals court panel has ruled. Reaffirming an April 1995 ruling, the U.S. Court of Appeals for the Ninth Circuit overturned sanctions imposed against an Escondido attorney who attached derogatory, gender-based comments from a magazine article to a letter to a female federal prosecutor.

U.S. District Judge Alicemarie Stotler sanctioned Frank L. Swan, ordered him to write an apology to assistant U.S. attorney Elana S. Artson, and referred the matter to the Central District's disciplinary committee.

During a 1993 tax evasion case, the government persuaded the judge that Swan should be disqualified from representing a client because of a conflict of interest. Swan then wrote to Artson, "I have something here that I think applies to you." He enclosed an excerpt from a law magazine article that stated, "Male lawyers play by the rules, discover the truth and restore order. Female lawyers are outside the law, cloud the truth and destroy order."

On appeal, Swan argued that Stotler's order unfairly limited his freedom of speech.

Although a three-judge appellate panel found that Swan "displayed a deplorable lack of sensitivity," it nonetheless concluded that his conduct did not adversely affect the administration of justice within the meaning of Local Rule 2.5.2.

In addition, it concluded that Business & Professions Code 6068(f), requiring lawyers to "abstain from all offensive personality," is unconstitutionally vague.

"As 'offensive personality' could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representations of their clients' interest, it would be impossible to know when such behavior would be offensive enough to invoke the statute," they wrote.

The panel permitted attorneys for the state of California and the State Bar to intervene upon rehearing. The state lawyers urged the court of appeals to avoid ruling on the constitutionality of the statute on the grounds that it did not apply because the communication at issue constituted out-of-court conduct.

Writing for the panel, Judge Edward Leary rejected that approach, saying he was "unable to discern . . . any clearly delineated bounds" to the statute.