In Which I Get to Write the Word "Cunt" Even Though the Court Doesn't and for Which I Probably Won't Get Censured in Colorado But You Never Know

I could join the chorus of bloggers and (so I'm told) facebookians and twits and write this, my 700th post and by god that adds up to a lot of words though I haven't a clue how many, about the Casey Anthony verdict and (or?) the responses to it and fallout from it. But beyond a rousing "Good Job!" for defense counsel and "Way To Go!" to the jury, I don't really have anything to say about it.

Besides, I have this legal conundrum for you:

If a lawyer shouts in a forest but there's no one around to hear him can he still be disciplined for an ethics violation?

I suspect you have no idea what it is to which I refer.  I certainly wouldn't from that poser.  Still I'm not intentionally being obscure.  (Well, actually I suppose I am.  But just briefly.) So come with me to the Casbah Centennial State (Colorado, also known as Colorful Colorado ostensibly "because of the state's magnificent scenery of mountains, rivers and plains," but since Colorado actually means "colored red" you'd think that might have something to do with it).

It was there.  Colorful Colorado, Clear Creek County Court, counsel called the court a cunt.  (Had enough of the alliteration yet?  I have.)  Counsel was one Robert Edward Gilbert and he used the word "c**t," as it is written (repeatedly) in People v. Gilbert, an "Original Proceeding In Discipline" as it's identified in the Decision and Order Imposing Sanctions not in open court and not to the judge herself but during plea negotiations with the prosecutor.

On April 21, 2009, Respondent appeared at the Clear Creek County courthouse for a scheduled hearing.  That morning, before his court appearance, Respondent met with Deputy District Attorney Michael W.V. Angel to discuss a possible plea agreement in Curry-Elrod’s case.  Respondent and Angel met in the jury deliberation room, a small chamber directly adjacent to Judge Olguin-Fresquez’s courtroom, where Assistant District Attorney Scott W. Turner was also working. 
In the course of negotiating a plea agreement, Respondent told Angel that he planned to file a motion seeking to recuse Judge  Olguin-Fresquez  from Curry-Elrod’s case.  Respondent listed his reasons for  seeking her recusal, chief among them his belief that the judge was biased against him and his client, after which he launched into a discussion of his  history with Judge Olguin-Fresquez.   Respondent told  the prosecutors the judge had appeared before him as a district attorney when he sat as a magistrate, referring to her as an “idiot,” and he recalled attending en banc meetings of the judiciary with Judge Olguin-Fresquez during which, he opined, she asked “stupid questions.”  Respondent went on to impugn Judge  Olguin-Fresquez’s legal acumen, challenge her intelligence, and derisively refer to her as a “c**t.”  Angel said he and Turner exchanged “shocked and incredulous” glances, but neither chose to “make an issue of it” with Respondent.   In the course of this diatribe, Respondent  inquired whether the district attorney’s office would object to a motion to recuse Judge  Olguin-Fresquez, and Angel said he would have no objection.   At the end of the discussion,  Angel completed the paperwork necessary for the negotiated disposition and transferred the file to the court staff.

For that use of cunt (I'm less delicate, and more realistic, than the members of the Hearing Board who think somehow that the word is less offensive if not actually spelled out; it's not as if Gilbert's saying "cee asterisk asterisk tee" would have avoided this whole mess) and several really obnoxious things Gilbert said to court personnel, Gilbert got hauled up on ethics charges.

Generally, and oversimplifying a bit, all the charges against Gilbert were dismissed because although ill-tempered and obnoxious, the "People" didn't prove that they were threatening or that they interefered with business or in one case even occured.  Except for the cunt thing.

It drew two charges.  First, that the

gender-specific profanity in reference to Judge OlguinFresquez while meeting with Angel prejudiced the administration of justice.

It didn't.  Why?  Because he only said it in the presence of two prosecutors.  No harm no foul.

Ah, but there's that second charge.

Finally, the Hearing Board turns to the People’s fourth claim for relief—that Respondent’s remark to the prosecutors violated Colo. RPC 8.4(g), which provides it is professional misconduct for a lawyer to:

engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether the conduct is directed to other counsel, court personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process.

And, says the Hearing Board, while the People (as the Sundance Kid said to Butch Cassidy, "Who are those guys") didn't prove that Gilbert was appealing to bias (calling the judge a cunt wasn't designed to get a better deal from the prosecutor who shared that view), that doesn't end it.

However,  the People have shown by clear and convincing evidence that Respondent engaged in conduct that exhibited bias by “knowingly manifest[ing] by word” gender prejudice against Judge  Olguin-Fresquez.  The only definition ascribable to “c**t”—“the female pudenda, or the female external genital organ”—inherently exhibits bias on the basis of gender and is “usually considered ‘obscene.’”  One court has noted that “‘c[**]t,’ referring to a woman’s vagina, is the essence of a gender-specific slur.”  This highly pejorative, taboo term “is properly deemed more offensive to women than men by virtue of its intrinsically degrading nature to women."  The Hearing Board therefore concludes Respondent’s conduct falls within the ambit of Colo. RPC 8.4(g).

Which is, I'm sorry, absolute bullshit.

Oh, I don't dispute that the word's offensive.  On this side of the Atlantic, it's probably the most taboo word we have.  (Though, really, read Jenny Diski's Riff on it from the Times Magazine back in May.) And I'm not going to dispute that insofar as it has a definition, it is of a female body part.  Sure.  So it's "a gender-specific slur."  Yup.  And yeah, it's "usually considered 'obscene.'"  Duh.

All of that.

But that it "inherently exhibits bias on the basis of gender"? That's what I don't buy.

When Gilbert said that the judge was a cunt, he wasn't saying she was a rotten person because she was a woman.  He was saying she was a fucking incompetent evil judge.  And yeah, he used a word that he wouldn't have used (I assume) in reference to a a fucking incompetent evil male judge.  

But see, here's the thing. Referring to someone as a cunt is insulting and offensive and typically includes in the insult the fact that the person is a woman.  But it isn't, at least not in any world I know, an exhibition "of bias on the basis of gender."  Of course, one can be biased against women and use the word.  Or not.

OK that's all rot.  But it is what it is.  The Hearing Board found Gilbert seriously offensive.  They let him off on most stuff, but they had to find something to slam him on and they picked bias because nothing else was even close.

Then they had to figure out what to do.  Let's see.

They looked at his record and found two bad things.

First, in 2007, he engaged in improper ex parte communications and got censured for it.  OK, the offense has nothing to do with this one, and it's not the same sort of thing, but he didn't learn the obligation of being perfect.  And he's now a two-time loser.  It's an arguably relevant consideration.

Second, he's a lawyer.

Really, you can't make this shit up.*

I mean, I know what the public thinks of lawyers.  But lawyers aren't supposed to agree.  But see, he's been a lawyer for 26 years.  Think of all the harm he's caused over the years.  Really, isn't that alone a basis for disbarment?  Shouldn't it be?

Anyway, think of all the harm he caused by referring to the judge as a cunt. 

Respondent’s conduct caused actual injury to the legal system

Actual injury.  My god.  But how?  Oh, I see.

[H]is obloquy sullied the public's perception of the profession.

Even though the public wasn't there, didn't hear, didn't know.

Hmmm.

This isn't the Mark Gardner Rule which prohibits saying bad things about judges because they are always false even if they're true.  And it's not the Rocchio Rule which requires that non-solicitations be labeled solicitations and forbids you from saying that the rule is silly.  Gilbert rule is that insult is bias, and lawyers may not be biased.  Or be lawyers.

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*And I didn't make it up.

Respondent was admitted to the Bar of Colorado in 1984.  As such, we consider in aggravation that Respondent has been licensed as an attorney in this jurisdiction for twenty-six years.