Attorney Misconduct, Bad Ideas, Biglaw, Constitutional Law, Free Speech, Legal Ethics, Partner Issues, Summer Associates, Women's Issues

Lawyer Claims His ‘Slut-Shaming’ Is Protected By the First Amendment — Just Like the Founders Intended

‘Oh my God! My career! Nooooooooooo!’

A few weeks ago, we learned that when it comes to failed professional endeavors, hell hath no fury like a patent attorney scorned. Now we know the same sentiment applies to their failed romantic wranglings.

What would a patent partner do if a summer associate turned away his sexual advances? He’d do what any dork would: in the hopes of ruining her budding career, he’d obtain a movie clip of the girl in a state of undress and pass it around via email to more than 50 Biglaw attorneys.

Of course, this led to a disciplinary action in which the brokenhearted patent practitioner employed some pretty wild defenses, the most entertaining one being that his slut-shaming was beyond ethical reproach because it was constitutionally protected speech….

The following account of events is based on the opinion of the Indiana Supreme Court (available in full on the next page). The patent attorney in question is Arthur J. Usher IV, formerly of Krieg DeVault and Bose McKinney & Evans. Usher met the sensuous summer, who is referred to as Jane Doe in the disciplinary decision (but is easy to find on the old Bose website), while she was working at the firm between her second and third years of law school. Usher tried to turn their social relationship into a romantic one, but much like a newly filed patent based on prior art, he was rejected time and time again.

Usher was apparently very upset that Ms. Doe “l[ied] to him and misl[ed] him regarding her affections,” (read: spoke to him and made eye contact), so he decided to use her past against her so that she’d rue the day she turned him down. It seems that Jane once starred in various horror movies before starting her legal career. In at least one of these films, she appeared to be topless, but apparently a body-double was used for all nude scenes. The recipients of Usher’s email didn’t know that tidbit, though, so they were led to believe that the poor girl bared her factually naked briefs for all the world to see.

Usher drafted an email using the following excerpts and recruited his paralegal to disseminate it to the masses using an email account bearing the name of Bose’s managing partner. Recipients included lawyers from Barnes & Thornburg, Baker & Daniels, Locke Reynolds, Ice Miller, and Krieg DeVault.

Arthur J. Usher IV

[Subject line:] Firm slogan becomes “Bose means Snuff Porn Film Business” w/addition of [Jane Doe]

This exchange among other women was just too humorous not to share. Since reading such e-mails from the bottom up is a pain I even rearranged everything in real time.

All I can say is that I googled [Jane Doe] after seeing the video clip and there does not appear to have been any way for Bose McKinney to have known about this.

I think you are failing to understand how harmful [Jane Doe]‘s behavior was to all female professionals, and the incredible stupidity in acting in such a film. A friend happened to wander into a movie theater on the east side of Indianapolis and bought a ticket and the DVD for this movie this past summer (some limited multi-evening engagement). The DVD came to me with a note about “When can we expect to see you getting naked in court?”

Having now subsequently seen the entire film, what is really troubling from a feminist perspective was that a female lawyer played the central role and/or otherwise blessed a film project in which the entire plot lines a woman being repeatedly brutalized by a man . . . . This movie was a disgusting misogynistic piece of garbage . . . .

Quite frankly, I can not [sic] believe Bose McKinney employs this woman. There are legions of plain faced big breasted blondes who are such hacks as actresses that they are gladly shedding their clothes (or doing anything else) to get in front of a camera. It is troubling that someone you would think would know better after making it through law school is such a bundle of insecurities that they would make such a film. Who knows, maybe she is not that bright and took a similar approach to getting hired?

Free speech rights aside, professional women (now being defined as women with a professional degree) do not need the [Jane Does] of the planet eroding their hard earned respect in the marketplace.

So, given that you told me that your company does about one to one and a half million dollars a year of work with outside counsel, the solution is simple. Refuse to do business with the Bose firms of the world when they employ such people. Moreover, encourage other female in-house counsel to adopt a similar approach.

That firm is free to hire idiots who participate in films demeaning to women. And we female in-house counsel are free to never use the Bose firm when they employ sexists (or those who denigrate women, or racists, or homophobes, etc.). So I am forwarding this e-mail chain to you to explain the situation and hope you will embrace what is basically my invitation to jot down a note to yourself not to use this firm or similar firms.

Jane Doe filed a complaint against Usher with the Indiana Supreme Court’s Disciplinary Commission, but the patent partner (who was forced by Krieg DeVault to resign after Ms. Doe obtained a protective order against him) was firm in his defense. Sure, Usher “intended to shame” her — or slut-shame her, if you will — but his speech was protected by the First Amendment, and the email wasn’t sent in his professional capacity… just his douchebag capacity. Here are the Court’s thoughts (citations omitted):

Respondent cites no case in which speech similar to his has been held to be beyond disciplinary sanction based on the First Amendment. This Court has imposed discipline on lawyers for speech found to violate their professional duties, as well as for unethical activities outside the professional arena. We conclude that Respondent’s actions regarding the email are not beyond this Court’s disciplinary authority.

No, silly, the Constitution cannot protect you when you pretend to be a bra-burning feminist in an attempt to ruin someone’s new life in the law — not even if she refused to suck your prestigious peen. After finding multiple violations of the rules of professional conduct, the Indiana Supreme Court suspended Arthur Usher IV from the practice of law for three years.

(If you’re interested, you can read the entire disciplinary decision on the next page.)

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