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Male Lawyer Called Female Lawyer What?

babe%20on%20board%20sign.jpgThis is not your garden variety “babe-calling” case. Ms. Aude sued Mr. Mullaney for negligently giving her herpes. (The jury found that he did, but that she was “contributorily negligent.”) Mr. Mullaney was represented by Allen Harris (and Benjamin Lipsitz). Ms. Aude was represented by Susan Green and Gary Bernstein.

At Ms. Aude’s deposition, “as [she] was leaving the room to retrieve [a] document, Mr. Harris remarked that she was going to meet ‘[a]nother boyfriend’ at the car. Ms. Green and Mr. Bernstein quickly told Mr. Harris that his comment was in poor taste and asked him to refrain from making further derogatory comments. The following ensued:”

MR. MULLANEY: It’s going to be a fun trial. [Oh, and he’s a lawyer, too. Very professional, no?]
MR. HARRIS: It must have been in poor taste if Miss Green says it was in poor tasted. It must have really been in poor taste.
MS. GREEN: You got a problem with me?
MR. HARRIS: No, I don’t have a problem with you, babe. [uh oh]
MS. GREEN: Babe? You called me babe? What generation are you from?
MR. HARRIS: At least I didn’t call you a bimbo. [have shovel, will dig]
MR.LIPSITZ: Cut it out.
MS. GREEN: The committee will enjoy hearing about that.
MR. BERNSTEIN: Alan, you ought to stay out of the gutter.

“According to Ms. Green’s legal assistant, Harris’s reference to Ms. Green as ‘babe’ continued throughout the litigation. In an affidavit … she stated that ‘in the course of her employment, [Mr. Harris] did telephone Ms. Green’s office and ask, ‘Is the babe in?’ He also referred to [the legal assistant] as ‘babe.”

Ms. Green then filed a motion asking the Court to put an end to this conduct (and some other defense conduct), and requested attorneys’ fees. So what do you think happened?

The motion was granted, and at a subsequent Hearing, the Judge ordered Mr. Harris and Mr. Mullaney to pay $1,500 in attorneys’ fees. As you might have guessed Mr. Harris and Mr. Mullaney filed an appeal. And what was there defense? Here is how the Maryland Court of Special Appeals described it:

They unblushingly ask this Court to construe Mr. Harris’s use of the term ‘babe’ as a term of endearment because it is a nickname for ‘Babe’ Ruth, a towering athletic figure and an American folk hero, and ‘Babe’ Didrickson, an outstanding and multi-talented female athlete… They contend that the term ‘indicates approval, [and] is a sign of approbation.’ Thus, they say, Mr. Harris’s ‘calling someone ‘babe’ would to him not in any way be a derogatory act, but would at least imply a commendatory opinion of the person so addressed.’ We find this argument singularly unpersuasive.

Lest there be any doubt about Mr. Harris’s intended meaning when he addressed Ms. Green as ‘babe,’ we need look no further than the transcript of the deposition. When Ms. Green asked him to refrain from the use of that term, Mr. Harris responded: ‘At least I didn’t call you a bimbo.’ To our knowledge, neither Babe Ruth nor Babe Didrickson was endearingly addressed as ‘bimbo.’

The cite for the case is Mullaney, et al. v. Aude (Md. Ct. Spec. App.).

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