In 1952, when no private firm would in- terview top Stanford Law graduate San- dra Day O’Connor for an attorney position, few lawyers might have imagined use of the professional rules to sanction an attorney for a disparaging display of sexism or gender bias. Today, thankfully, model rules are serving such a purpose. And these rules should be used by attorneys and judges to stop gender-focused criticisms in our profession. In a Puerto Rican conference room in 2015, a full complement of 16 attorneys was on hand to depose an employee of a defendant in a class action lawsuit. As anyone familiar with the underrepresentation of women in the legal
profession might guess, there were 12 male attorneys and only
4 female. The deponent paused to make some calculations in
response to a question. One male attorney appeared to ques-
tion whether the air conditioning was working, to which the
deponent’s attorney — a woman — responded, “I don’t know
but it’s hot in here.” The plaintiff’s attorney, a male, interjected:
“¿Tienes calor todavia? [You’re still warm?] You’re not getting
menopause, I hope.”
The following exchange ensued:
Ms. Monserrate (the disrespected): That’s on the record.
Mr. Salas (the aggressor): No, no, no, no.
Ms. Monserrate: You know that a lawyer here got in big
trouble for a comment just like that.
Mr. Salas: Really.
No one else spoke at that moment. The deposition contin-
ued. But this was not the end of the issue. After the witness had
been excused, a male attorney also representing the deponent
noted Mr. Salas’s comment for the record and asked the court
reporter to retain the audio recording, as follows:
The note for the record I’d like to make is that I asked the
court reporter to preserve the audio that was recorded today.
The court reporter agreed that she would review the audio
and transcribe a relevant portion of the audio related to a
comment that I heard Mr. Salas make to my co-counsel, Dora
Monserrate, during the deposition today. That comment, in
substance, was in response to Ms. Monserrate’s statement
that the room was very hot. Mr. Salas responded that maybe
that was because she was going through menopause.
Then Mr. Salas responded:
Let the record reflect that a comment of that nature was, in
fact, made by me. It was not made with any bad intent. As
soon as we took a break and I saw that counsel had been
hurt or took the comment improperly, I tried to apologize to
her. She told me that she didn’t want to talk to me. So that’s
what happened. And let me state for the record that it was
an improper comment. I didn’t mean to harm her in any way.
I’ve tried to apologize to her right now, and that’s all I can do.
This story and its quotations came to light in a written opinion by the Honorable Francisco A. Besosa of the United States
District Court for the District of Puerto Rico in the case Eliezer
Cruz-Aponte v. Caribbean Petroleum Corp., No. 09-2092 (
United States Dist. Court for the Dist. of Puerto Rico Aug. 17, 2015),
in an order deciding a motion for sanctions. Judge Besosa
sanctioned Mr. Salas for professional misconduct under Model
Rules 4. 4 and 8. 4(d).
These rules are similar to Washington’s RPC 4. 4, prohibiting an attorney from using means in the litigation “that have
no substantial purpose other than to embarrass, delay or burden a third person,” and RPC 8. 4(d) prohibiting an attorney
from engaging “in conduct that is prejudicial to the administration of justice.” Washington rules go further, also prohibiting “a discriminatory act prohibited by state law on the basis
Sanctions for Sexist Remarks
by Averil Budge Rothrock
Don’t Overlook Obnoxious, Demeaning Behavior