"Have You Heard the One About the Judge Who Told Ribald Jokes ..."

I recently wrote a book entitled, The New Lawyer's Handbook: 101 Things They Don't Teach You in Law School. The book is a friendly, common sense guide about everything from firm culture to courtroom etiquette to why it's not a great idea to cross-examine your spouse. It is meant to help law students and new practitioners who may know a great deal about the study of law but virtually nothing about the practice of law.

Even though it seemed obvious and a bit unnecessary, I included a chapter in the book warning my readers about the use of profanity and insensitive jokes and email. (It also made my mother very happy). Trust me when I say that I am neither a fun-hater nor a prude. But when dealing with clients and colleagues it is never okay to swear or tell a raunchy joke. I wrote, "As an educated person charged with upholding the ideal of equal justice under the law, I encourage you to have a zero tolerance policy. Even if you are not particularly offended by something, you should protect those in your orbit who may be."

These words were ringing in my ears when I read The Los Angeles Times story about Alex Kozinski, Chief Judge of the United States Courts of Appeals for the Ninth Circuit. In an opinion made public this week and reported by The Times, the Judicial Council of the U.S. Third Circuit Court of Appeals has decided to take no action against Chief Judge Kozinski for emailing jokes to a group of friends and associates, some of which allegedly included "tasteless" material.

In a footnote in the opinion, the Judicial Council said Chief Judge Kozinski "acknowledged having maintained an email 'gag list' over a number of years and having sent some ribald jokes to the list ..." Chief Judge Kozinski stated that he stopped emailing to the "gag list" in the summer of 2008 and "apologized for any embarrassment to the federal judiciary that resulted from the distribution of jokes via the gag list."

To be clear, I am not criticizing the ultimate outcome of the proceedings before the Judicial Council. But when an extremely intelligent and high ranking member of the federal judiciary is committing the same error in judgment that might be committed by someone right out of law school, we should pause for a moment and state with great clarity why this type of behavior is inappropriate and unacceptable.

One - The exchange of this type of material at work can lead to potential liability for your employer. There are plenty of cases where the exchange of inappropriate emails forms the basis of a charge of discrimination or sexual harassment.

Two - It displays gross insensitivity to the rights and feelings of the persons who are the subject matter of the email and also the persons who receive the email. I suppose the people who send this type of message assume that everyone will think it is as funny as they do. As Chief Judge Kozinski learned, they don't.

Three - You need to be a positive example for other people. Ultimately, circulating jokes and emails that reinforce stereotypes, mock other groups of people, or use inappropriate language will only serve to diminish you in the eyes of your friends and colleagues.

Four - It leads to a culture of cronyism. By accepting the email without comment or laughing politely at the joke, the recipients become complicit in the behavior and are given permission to act in a similar fashion. It also leads the recipients to believe that they have an inside track with the person telling the joke or sending the email. The people who disapprove feel marginalized. None of this is conducive to a positive work environment.

A final thought -- I would suggest that the Judicial Council refrain from using the term "ribald" to describe the jokes in question. "Ribald" as an adjective means "humorously vulgar" or "characterized by coarse or vulgar joking or mocking, esp., dealing with sex in a humorously earthy or direct way." Use of that term minimizes the behavior and gives the impression that, although the jokes may have been insensitive, they were still funny. Here's a news flash: Jokes like that in the workplace or with clients and colleagues are never funny.

Each one of us should learn from this incident and then speak and act accordingly.