The Fourth District Court of Appeal on Thursday referred San Diego attorney Benjamin Pavone to the State Bar, finding that he committed misconduct and demonstrated gender bias by calling the ruling of a female judge who denied him attorney fees “succubustic.”

A succubus, the court pointed out, “is defined as a demon assuming female form which has sexual intercourse with men in their sleep.”

Justice Richard Fybel wrote that the panel chose to publish the decision in part “to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

Pavone's misconduct comes in a case where he was attempting to revive a request for more than $160,000 in legal fees. An Orange County jury sided with his client Fernando Martinez's sexual harassment claim against his former employer. The jury, however, awarded Martinez just $8,080 in damages, much less than the more than $500,000 requested.

Judicial Commissioner Carmen Luege of Orange County Superior Court denied Pavone's request for attorney fees, finding that he overlitigated the case. She also found that Pavone submitted reconstructed time sheets that included one 25-hour day and multiple 15-hour days. Luege denied the motion for fees, writing: “These entries raise serious questions about the accuracy of counsel's alleged reconstruction of the time he spent working on this case.”

In his notice of appeal, Pavone wrote that Luege's ruling demonstrated a “succubustic adoption of the defense position.”

Aside from turning back Pavone's appeal, the Court of Appeal found Pavone's language biased and found that his charge that Luege had deliberately refused to follow the law was unfounded. The panel found Pavone had committed misconduct under the state's Business and Professions Code section 6068, subdivision (b), which requires attorneys to “maintain the respect due to the courts of justice and judicial officers.” It wrote that the California Code of Judicial Ethics required it to make lawyers to refrain from biased and harassing behavior and to take corrective action, including reporting lawyer misconduct to the State Bar.

Reached by email Friday, Pavone said that the fee matter would be subject to further proceedings. 

“As to the panel's state bar report, the trial court drew first blood when it accused me of fabricating entries on a fee application—accused me of dishonesty,” Pavone wrote. Pavone contended that accusations that he fabricated billing records fell apart on appeal, but the panel “conveniently” ignored that issue.

“Notably, there is no indication the panel will refer the trial judge for discipline in light of its, now provably, false accusations, ones far more serious than a vague sexual reference technically attacking the ruling, not the judge,” Pavone wrote. “It is not reasonable to assume a self-respecting lawyer will stand for being unfairly accused and morally impugned and not fight back.”

When asked whether he regretted his choice of words, Pavone responded: “Were I to be given the opportunity to rewrite that sentence, the criticism would have been more strictly academic in nature.”

W. Michael Hensley of AlvaradoSmith in Santa Ana, who represents the defendant in Martinez's case, was out of the office an unavailable on Friday.

Read the full ruling here: