Court Declines to Sanction Lawyer for Alleged “Butt Shaking” During Mediation

One of the sentences a judge does not imagine—much less welcome—writing includes the words “butt shaking” in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.

—Chief District Judge Lee Rosenthal (S.D. Tex.)

So begins Judge Rosenthal’s order of May 4 in White v. Chevron Phillips Chem. Co., which brings to an end a months-long saga that began last year with the aforementioned conduct by one of Chevron’s lawyers.

I thought I had reported on the motions that resulted in this order, but if I did so it was on Twitter. I know this because a search of Lowering the Bar for the words “butt shaking” turns up, perhaps surprisingly, only three hits:

  • A 2010 note on an Iowa Supreme Court ruling that whether a water-district employee was entitled to workers’ compensation depended on whether he had acting in the course of his employment while “shaking his butt” at a fellow worker (who hit him with a truck while “trying to return the unusual greeting”).

Not this case, though.

This case did make headlines elsewhere a couple of months ago after the lawyer in question withdrew from the matter. Plaintiff’s counsel had filed a motion for sanctions in February, claiming defense counsel made certain “obscene and threatening comments and gestures” at a mediation in 2019. Butt-shaking in and of itself is neither obscene nor threatening, of course, but in this case it was allegedly combined with some verbal obscenities and what appear to have been speculative comments about opposing counsel. That’s what he claimed, at least.

In its order, the court noted that it had received sealed declarations from both lawyers and the mediator who was present, and that these declarations “show significant disagreement about what occurred.” They also showed, according to the court, that “neither counsel was a role model of professional conduct.” But whatever actually happened, the declarations apparently did support the claim that defense counsel’s behavior was “clearly outside professional bounds” and at least potentially sanctionable.

The court declined to award any sanctions, however, finding this unnecessary under the circumstances. For one thing, it questioned whether plaintiff’s counsel had actually spent $10,000 worth of time, as he claimed, on what was a “short and straightforward” motion for sanctions (it was only four pages long, in fact), and some minor scheduling issues. But more importantly, it decided that defense counsel had probably suffered enough. He had withdrawn from the case, it pointed out, and this was after receiving national press coverage of the alleged butt-shaking. His “professional reputation, and the closely related ability to attract new business, will no doubt suffer,” the court suggested, “and they should.” (According to the ABA Journal, he is now with a different firm, which may or may not be related to the controversy.) But a “detailed inquiry to resolve the many factual disputes” and determine “who is primarily or entirely to blame” was unnecessary, the court decided.

It all depends on the context, of course. In this case, a couple of F-bombs combined with some amount of butt-shaking may or may not have been held sanctionable (had circumstances warranted). Towards the other end of the scale, we know that 73 F-bombs during a deposition definitely is sanctionable, even if no butt-shaking occurred at all. But this sort of thing is impossible to predict in advance, so you should probably avoid any combination of these actions.