123 F. Supp. 3d 276
D.P.R.2015Background
- Dora Monserrate‑Peñagarícano (counsel for Intertek) and Camilo Salas (plaintiffs’ pro hac vice counsel) were both present at a March 19, 2015 deposition with many attorneys in the room.
- During a break in the deposition, after Monserrate said the room was hot, Salas said on the record in Spanish and English: “¿Tienes calor todavía? … You’re not getting menopause, I hope.”
- The court reporter preserved an audio backup; the parties placed the exchange on the record and Salas acknowledged and apologized both at the deposition and later in filings.
- Monserrate moved for sanctions, seeking revocation of Salas’s pro hac vice admission and other discipline for a discriminatory, humiliating comment. Salas admitted the remark, denied bad intent, and urged no sanctions.
- The Court reviewed the audio, applied Local Rule 83E (incorporating the ABA Model Rules), and found the comment violated Model Rule 4.4 and 8.4(d) as an embarrassing, discriminatory remark targeting gender/age.
- The Court declined to revoke pro hac vice status but ordered limited sanctions: $1,000 in attorney’s fees to Monserrate (subject to objection) and completion of a CLE on professionalism by a set date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Salas’s comment violated professional conduct rules | The remark was disparaging, discriminatory, and intended to humiliate; violates Model Rules and Local Rule 83E | The comment was inadvertent, made without bad intent; concern for medical condition (hot flashes) | Court: comment violated Model Rule 4.4 and 8.4(d); intended to embarrass and singled out Monserrate by gender/age |
| Whether misconduct was isolated or part of a pattern | Characterized as discriminatory conduct during deposition; urged sanctions | Salas’s counsel pointed to apology and lack of repeated misconduct | Court: isolated incident (no pattern observed on audio), which mitigates but does not excuse conduct |
| Whether sanctions are warranted at all | Requested strong sanction (revocation of pro hac vice) to vindicate professional norms | Asked for no sanctions given apology and lack of intent | Court: sanctions warranted despite mitigation; revocation too severe |
| Appropriate form and scope of sanctions | Seek revocation and other discipline | Requested leniency; offered apologies and remediation | Court: ordered $1,000 attorney’s fees to Monserrate and required CLE on professionalism; allowed fee objection deadline |
Key Cases Cited
- Mullaney v. Aude, 730 A.2d 759 (affirming sanctions for repeated sexist deposition remarks)
- Principe v. Assay Partners, 586 N.Y.S.2d 182 (Sanitary Ct. 1992) (discriminatory attorney conduct harms profession; sanctions justified)
- In re Valcarcel Mulero I, 142 D.P.R. 41 (1996) (suspending attorney for repeated demeaning references to female counsel)