Lawyer Receives Stern Benchslap And Amazing Sanction For Sexist Deposition Comment

What did this lawyer say to draw the judge's ire?

Sexism pays sometimes.

Sometimes, sexism pays.

As we’ve thoroughly documented in these pages, women who practice law are often subjected to demeaning and degrading comments from their male colleagues, for no other reason than because they’re women. One federal judge had finally had enough of this type of disrespectful behavior, so he took a lawyer to task for making a sexist remark during a deposition.

Lori Rifkin, a solo practitioner in Oakland, California, was representing a client in a wrongful death lawsuit when she sought sanctions against her opposing counsel, Peter Bertling, managing partner of Santa Barbara-based Bertling & Clausen. Rifkin moved for sanctions against Bertling, citing failure after failure to comply with discovery demands, but perhaps most disturbing of all was her complaint about Bertling’s conduct during a rather contentious deposition. During that deposition, Rifkin asked that Bertling stop interrupting her, and his response was cringeworthy. This is what he said on the record (emphasis added): “[D]on’t raise your voice at me. It’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.”

Judge Paul Grewal of the Northern District of California took major issue with Bertling’s remark, calling it an “indefensible attack on opposing counsel.” In his 10-page order granting sanctions, Judge Grewal dedicates an entire section to Bertling’s sexist comment, where he launched into a full-fledged defense of women lawyers:

There are several obvious problems with his statement, but, most saliently, Bertling endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys. To make matters worse, in his declaration in opposition to this motion, Bertling offered only a halfhearted politician’s apology “if [he] offended” Plaintiff’s counsel, and he nevertheless tried to justify the comment because it “was made in the context of [Plaintiff’s counsel] literally yelling at [his] client and creating a hostile environment during the deposition.”

A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that comments like Bertling’s reflect and reinforce the male-dominated attitude of our profession. A recent ABA report found that “inappropriate or stereotypical comments” towards women attorneys are among the more overt signifiers of the discrimination, both stated and implicit, that contributes to their underrepresentation in the legal field. When an attorney makes these kinds of comments, “it reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.”

Peter Bertling has been practicing law for almost 30 years — he should know better than to make sexist remarks about women lawyers, either on or off the record (though perhaps it’s by virtue of the fact that he’s been practicing law for such a long time that he’s got a penchant for supposedly unwitting sexism). In an interview with The Recorder, Lori Rifkin stated what every almost woman who practices law already knows all too well: “[T]his is something that almost every woman attorney has experienced again and again over their careers. This is reflective of the usual course of business which needs to change.”

Whatever the case may be when it comes to Bertling’s motivations, Judge Grewal found a perfectly appropriate way to sanction Bertling for his sexist deposition commentary — he ordered Bertling to make a $250 donation to the Women Lawyers of Los Angeles Foundation, an organization dedicated to promoting the full participation of women in the legal profession.

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Thank you, Judge Grewal, for taking a stand for women in the legal profession. Just think about how well-funded women’s bar associations and lawyer groups would be if more judges sanctioned sexist attorneys in such a fantastically suitable manner.

UPDATE (5:15 p.m.): Here are some thoughts from editor Joe Patrice on why we shouldn’t give Judge Grewal so much credit for his sanctions order against Bertling.

(Flip to the next page to see Judge Paul Grewal’s sanctions order in full.)

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