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A lawyer who used the “F-word” when arguing with other lawyers on the phone and in depositions should not have been hit with stiff sanctions since none of her foul language occurred in court, a federal appeals court has ruled. In Saldana v. Kmart Corp., a unanimous three-judge panel vacated sanctions imposed on attorney Lee J. Rohn of St. Croix in the U.S. Virgin Islands after finding that she wasn’t properly notified that the court was considering sanctions under the court’s “inherent powers.” The appellate court also found that Rohn’s use of foul language simply wasn’t reprehensible enough to justify the sanctions. “Nothing ‘egregious’ is evident here. Indeed, the District Court described itself as a ‘kindergarten cop’ refereeing a dispute between attorneys,” 3rd Circuit Judge Maryanne Trump Barry wrote. “We find that the quality and quantity of the transgressions found by the District Court — four uses of the word ‘f—,’ two in telephone conversations with attorneys and two in asides to attorneys during depositions, and a post-verdict letter in which Rohn concurred with a juror who described an expert witness as a ‘Nazi’ — simply do not support the invocation of the court’s inherent powers,” Barry wrote. In the sanctions order, U.S. District Judge Thomas K. Moore of the Virgin Islands ordered Rohn to attend a legal education seminar on civility in the legal profession, and to write numerous letters of apology to all whom “she demeaned and insulted by her vulgarity and abusive conduct.” Moore also ordered Rohn to reimburse Kmart for the $4,542 in legal fees it expended in pressing the sanctions motion. The brouhaha over Rohn’s potty mouth erupted during the discovery phase of a run-of-the-mill slip-and-fall lawsuit. Kmart’s lawyer, Andrew C. Simpson of Bryant, White & Barnes, demanded sanctions, saying Rohn’s foul mouth was violating the “fundamental precepts of legal ethics.” Rohn was quoted in the motion as saying, “You know, Andy, go f— yourself,” when she and Simpson had a disagreement over the scheduling of depositions. Simpson complained that Rohn “routinely” used the F-word when she argues with opposing counsel. In the appeal, Rohn argued that Judge Moore had violated her due process rights by failing to advise her in advance of a hearing that he would be considering hitting her with sanctions. Although the court sided with Rohn on that legal point and others, Judge Barry said in a preface to the opinion that the court didn’t want to send the wrong message. “We do not condone Rohn’s concededly rather free-wheeling use of the word ‘f—,’ and nothing that follows should be taken as any indication that we do,” Barry wrote in an opinion joined by 3rd Circuit Judges Theodore A. McKee and Marjorie O. Rendell. But Barry said there was no contention that Rohn ever used the F-word or any vulgar language in front of the judge. Barry also noted that Rohn and Simpson have “a long and not particularly happy history” and that he had rebuffed her “immediate attempt to apologize” after the telephone incident. “This history is not only readily apparent from the rather scathing submissions made by both sides, but from the fact that the motion and memorandum, although filed a mere three days after the fateful telephone disagreement, included a host of exhibits documenting, among other things, numerous occasions on which Rohn used the word between October 1993 and February 1997,” Barry wrote. Rohn responded to Simpson’s memo by saying it was obvious that he and his firm had been “accumulating ammo” against her for years. Without choosing sides, Barry agreed that Simpson was necessarily wearing an unsmudged white hat. “The history here certainly permits the conclusion that the [Bryant White] firm’s attempt to portray itself as something akin to a knight in shining armor protecting the bar and the public from ‘such conduct’ and preventing the ‘further degradation of the administration of justice and the reputation of the Virgin Island Bar,’ may well be overstating its case,” Barry wrote. Turning to the due process argument, Barry found that the trial judge had held a hearing that was originally limited “solely to the issue of attorney Rohn’s behavior in this case.” But when the hearing began, she said, Judge Moore announced that he had not intended to limit the inquiry to one case, but instead that he would consider evidence of Rohn’s conduct in all federal cases. Rohn testified, apologizing and promising to refrain from using the F-word in the future. Barry found that Moore seemed to be satisfied at the close of the hearing that Rohn “had seen the error of her ways,” and therefore “barely touched on the issue of sanctions.” Instead, she said, Moore told her only that he would issue an opinion “giving very clear advice to the bar as to how attorneys are supposed to conduct themselves in and out of court.” More than two years after the hearing, Moore issued an opinion that imposed sanctions under the court’s inherent powers. Rohn was ordered to apologize to any lawyer she had cursed at as well as the court reporters who witnessed her abusive language. Barry found that Rohn’s due process rights were violated because she was first notified of the sanctions under the court’s inherent powers when she received Moore’s opinion. “That notification simply came too late,” Barry said, noting that the inherent powers sanction was never pressed by Kmart as the basis for sanctions and was never mentioned at the hearing. “No one — not the court, not Kmart, and not Rohn — ever even alluded to the procedures of [Virgin Islands Local] Rule 83.2(b)(5), much less argued why they should, or should not, be followed,” Barry wrote. But even if Rohn’s due process rights weren’t violated, Barry found that the sanctions should be reversed because they were too harsh for the offending conduct. “We agree with Rohn that her use of language, while certainly not pretty, did not rise to the level necessary to trigger sanctions, at least under the court’s inherent powers,” Barry wrote. “The language complained of in this case did not occur in the presence of the court and there is no evidence that it affected either the affairs of the court or the ‘orderly and expeditious disposition’ of any cases before it,” she wrote.

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