From The Ethics Alarms “Everything Is Seemingly Spinning Out Of Control!” Files, Legal Ethics Division

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  He now works at a smaller and less prestigious firm, and no longer represents Chevron  in the discrimination case.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.

13 thoughts on “From The Ethics Alarms “Everything Is Seemingly Spinning Out Of Control!” Files, Legal Ethics Division

  1. I realize my comment does not address the point of the post. However, it must be fantastic to work in a profession where there are formal rules and procedures for dealing with alleged inappropriate behaviors like those discussed above. In almost any other profession or workplace, the mere accusations of such shenanigans would get one fired by whatever man-hating 26-year-old female who was put in charge of HR that week. The results for the accused being career over and life ruined. At least with an official process, a person stands a chance to live and work another day. I hope lawyers appreciate the benefit of such a system.

  2. It’s times like this that remind me NOT to do some of the things I have considered doing in my professional life and remind me how I have dodged the bullet probably more times than I deserve. My conduct tends more toward the violent than the sexual, though. I’ve never actually assaulted another attorney or a staff member, but I came close a couple of times. This profession and the nasty people in it can try your patience, and mine is already pretty limited.

  3. Interesting Motion. The facts section is extremely scant – usually in these motions you see a long litany of behaviors. Here, there are the four you mention and that’s it – not even a catch all phrase, like this is illustrative of his conduct throughout the proceedings. Maybe it was in one 30 second burst of anger and other than that he was a gentleman. – the motion doesn’t. Foreclose that possibility.

    And it appears both counsel were men. I’m not saying that men don’t deserve to be treated with respect, but sometimes men take liberties with other men, rightly or wrongly.

    Law is unique in that we have rivals, legitimate opponents. I’m not.condoning his behavior but he didn’t do this to a customer or fellow employee.. so the “in any other workplace” scenario is not really apt. And he did indeed get fired over what amounted to sporadic bad behavior at an out of court proceeding.

    I actually do think he’s suffered enough.

    • And it appears both counsel were men. I’m not saying that men don’t deserve to be treated with respect, but sometimes men take liberties with other men, rightly or wrongly.

      You reminded me of the barbershop scenes in “Gran Torino”!

      • Right! Especially in the law, you see that dynamic played out all the time. I’ve had male attorneys and clients drop the “f word” the first time I talk to them (not in anger but in emphasis- the anger comes later). The assumption is that it won’t offend me, and it doesn’t. I’m careful with swearing until I establish a rapport with somebody because there are both men and women who are offended by that. I can guarantee you my dad never said the “f word” once in his entire life. But there are men who assume they are in the Gran Torino barbershop all the time, with every other man.

      • The thing about guy on guy is that if it goes too far you can give the other guy a punch in the mouth or at least threaten it. With a woman you can’t do that.

  4. Good morning. Almost immediately after reading this post on legal ethics, I came across this letter to the New York Times by a retired attorney.

    To the Editor:

    I am a retired attorney and a survivor of multiple #MeToo experiences over my 66 years, including a violent rape. I loathe hypocrisy and try to avoid it and those who practice it. I disagree with nearly everything our current president does or says. I fear for the future because of the irreparable harm he has done to the country.

    I learned early in my career that the practice of law, and life in general, is a series of bad choices, particularly in bad times. The trick is to select the least awful option. I’m voting for Joe Biden for multiple reasons having nothing to do with his or President Trump’s alleged conduct with women. That Rubicon has been crossed.

    We cannot survive as a democratic society with Mr. Trump in office for four more years. The need to get him out of office overrules every scruple we may have. I will live with my hypocrisy and believe that tens of millions of Americans will feel the same.

    Karen Wilson
    Dallas

    There are many statements Ms Wilson makes that one could argue with but what immediately struck me was her statement that she feels the need to get Trump out of office should overrule every scruple. This is a person trained in the law and presumably capable of saying precisely what she means who feels no scruples should stand in the way of removing Trump. Her reasoning justifies assassination or any other action that achieves that goal. It’s OK though. She “loathes hypocrisy” but these aren’t ordinary times.

  5. Yep. That sounds like pretty obnoxious behavior. I have appeared before Judge Lee Rosenthal as a district court judge and as a court of appeals judge sitting by designation. She is an excellent judge, moves her cases along with professionalism and expects decorum from counsel and litigants. She does not suffer fools lightly. I suspect her statement that “neither counsel was a role model of professional conduct” was a result of Chevron’s filing under seal explaining why he did what he did – though, I can’t imagine what conduct Kennard engaged in to justify asking him if he wanted to fuck Duffy. Were I the judge, I would be more offended by that remark than by some stupid twerking attorney.

    On a side note, the motion for sanctions is not well drafted. It is not supported by affidavits or other evidence, and the four allegations of bad conduct are not supported by evidence of witnesses to the incident at the mediation. Alfonso Kennard, the complaining attorney, should know better. According to his firm’s website, he “is a nationally recognized attorney and trial lawyer and the founding Shareholder of Kennard Law P.C. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, and spent nearly a decade in large national law firms before starting this Firm to help employees. Mr. Kennard services each of the Firm’s offices throughout the State and Washington D.C.” Kennard bio on his website also declares that he “is a Past President of the Notre Dame Alumni Association in Houston and is also a Commissioner for the City of Houston Contract Compliance Commission as an appointee of Mayor Bill White. Mr. Kennard also serves on the Board of Directors for the St. Mary’s University School of Law Alumni Association and mentors business leaders at Stanford University’s LBAN program at the Graduate School of Business.”

    Also, I suggest that there is a whole lot more involved in the incident. In responding to the motion, Chevron Phillips claimed that the allegations were not substantiated and that the plaintiff had mischaracterized the encounter. The plaintiff waited months to raise the allegations and did it just before her deposition. Chevron Phillips argued this was the plaintiff’s attempt to gain leverage in the case through press attention. Perhaps that is why Judge Rosenthal denied the motion, largely on the basis that Duffy was replaced and the issue is moot.

    jvb

  6. I’m confused…I thought ponytail on a (male) lawyer meant“I’m an old hippie who mainly represents likely guilty small-time drug dealers, and may accept payment-in-kind”, not “I’m gay”. What was Duffy thinking?

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