This story first came to the attention of the legal community in February, when a plaintiff in an employment discrimination suit against Chevron filed a Motion for Sanctions against Chevron’s Houston-based attorney, Dennis Duffy. It began by stating that Duffy had engaged in “a campaign of abusive and intolerable conduct that began with profanity-laced conversation” and escalated to “discriminatory slurs.” Then she alleged, things got really bad. The motion further alleged,
“Mr. Duffy made remarks and gestures during mediation that were unprofessional and disrespectful to Plaintiff’s counsel…including, but not limited to:
- Mr. Duffy shaking his behind in front of Plaintiff’s counsel.
- Mr. Duffy asking Plaintiff’s counsel, “Do you want to fuck me?”
- Mr. Duffy making inappropriate remarks regarding Plaintiff counsel’s hairstyle.
- Mr. Duffy stated, “Do you want to fuck me? You have a ponytail haircut, I figured you wanted to fuck me…”
Yes, I’d agree that this is sanctionable conduct.
Now a final order has come down in the matter of Mr. Duffy, beginning with the judge writing, “One of the sentences a judge does not imagine—much less welcome—writing includes the words ‘butt shaking’ in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.” Like the complaint, that opening is destined for legal legend.
Yet incredibly, U.S. District Judge Lee Rosenthal ruled that no sanctions were necessary, using one of Ethics Alarms’ least favorite excuses for lenient treatment of unethical conduct, “He’s suffered enough.”
“The declarations show significant disagreement about what occurred,” Rosenthal wrote of the sealed depositions in the case. “While Duffy’s behavior was clearly outside professional bounds, neither counsel was a role model of professional conduct… Duffy has had to withdraw. Before he did so, he received national press coverage when the sanctions motion ‘went viral.’ Duffy’s professional reputation, and the closely related ability to attract new business, will no doubt suffer, and they should.”
The lawyer was a partner at BakerHostetler when the sanctions motion was filed; it dumped him. He now works at a smaller and less prestigious firm, and no longer represents Chevron in the discrimination case. His opposing counsel, Alfonso Kennard, Jr., believes that the judge’s comment about “both counsels'” conduct falling short of professional ideals was unfair, and that she must have assumed he had been responsible for social media getting a hold of the complaint. He says that isn’t true.
So we don’t have a definitive finding about whether Duffy really did engage in unethical butt-wiggling. There is little doubt in my mind, however, that if true, the conduct would have breached ABA Rule 8.4 (d), which prohibits conduct prejudicial to the administration of justice. Texas, however, does not have that rule, unlike the vast majority of the states. Its equivalent rule, 8.04 (a) (4) says that a lawyer shall not engage in conduct constituting obstruction of justice.
I do not see how wiggling one’s butt, however large, attractive or repulsive, could possibly obstruct justice.