April 7, 2023

The Honorable Richard J. Durbin

Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Lindsey Graham

Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

RE: Michael Delaney’s nomination to the federal bench

Dear Chairman Durbin and Ranking Member Graham:

As an attorney and a law professor who specialize in safeguarding the legal rights of sexual assault survivors,
including those who are minors, we write to strongly oppose the nomination of Attorney Michael Delaney to
serve as a United States Circuit Court Judge on the United States Court of Appeals for the First Circuit. Delaney
is manifestly unqualified to serve as a federal judge and has a proven track record of engaging in unethical
litigation tactics to silence and abuse survivors through the legal system. Should Delaney be elevated to the
bench, we believe he will be unable to consider and rule without bias in cases that involve such issues.

In a 2016 Title IX lawsuit filed against St. Paul’s School in Concord, New Hampshire, by 15-year-old sexual
assault survivor Chessy Prout, 1 the plaintiff, through her parents, sought to proceed under the pseudonym of Jane
Doe because she was an underage survivor of sexual abuse and was terrified of retaliation and further abuse by
her peers and her community if she used her name. Courts routinely permit underage survivors like Prout to
proceed pseudonymously because it is almost universally accepted that the harms of such a vulnerable individual
being forced to name themselves publicly outweigh the transparency benefits.

Regardless, Delaney filed an extremely unusual motion seeking an order to strip Prout of her anonymity once the
case reached the trial stage. 2 Unsurprisingly, Delaney was unable to find precedent for such an order within the
First Circuit, so he cited to cases from other federal circuits to support his arguments. This included Doe v.
Cabrera, a case in the U.S. Court of Appeals for the District of Columbia.3

1
Doe v. St. Paul’s School, No. 1:16-CV-00225-PB (D.N.H. Aug. 11, 2016).
2
The memorandum of law Delaney submitted to the court in support of his arguments is attached to this letter.
3
See Doe v. Cabrera, 307 F.R.D. 1 (D.D.C. 2014).

Elizabeth Abdnour, Founder & Principal • elizabeth@abdnour.com

Licensed in Michigan & Ohio • Elizabeth Abdnour Law, PLLC
 The Honorable Richard J. Durbin and the Honorable Lindsey Graham
RE: Michael Delaney’s nomination to the federal bench
April 6, 2023
Page 2 of 4

In Cabrera, the plaintiff, a 27-year-old woman, filed claims of assault, battery, and intentional infliction of
emotional distress against Cincinnati Reds baseball player Alfredo Cabrera, who she alleged had sexually
assaulted and raped her. The case received significant public attention, and after filing her complaint with a
motion to proceed pseudonymously, the plaintiff released a public statement, which then led Cabrera’s attorney
to release a public statement in response.

The Cabrera court held that the woman could proceed pseudonymously at the pretrial stage but would need to
disclose her identity at the trial stage. The court explicitly considered the woman’s age in reaching this
determination:

Where victims are not minors, courts are generally less inclined to let the alleged victim proceed
in litigation under a pseudonym . . . Here, the plaintiff was not a minor at the time of the incident,
see Compl. ¶ 7 (noting that “[a]t the time of [the alleged sexual assault and battery, the plaintiff]
was a 27-year old resident of the District of Columbia”), so this factor weighs against allowing
the plaintiff to proceed anonymously. 4

Delaney made no mention of this critical component of the D.C. Circuit Court’s rationale in his memorandum of
law to the District Court for the District of New Hampshire. Delaney simply argued that, because Prout’s family
had spoken publicly and the plaintiff in Cabrera had spoken publicly, Prout should be stripped of her anonymity
at trial as the plaintiff in Cabrera had been.

Delaney similarly cited to Doe v. Colgate University, a case involving an adult respondent in a sexual assault
matter who filed claims against his university due to its alleged mishandling of the Title IX process; Doe v. Rose,
a case involving allegations of gang rape and other personal injury claims made by an adult; and E.E.O.C. v. Spoa,
LLC, a case involving claims of sexual harassment and retaliation made by adult employees against their
employer.5 All these cases involved adults, which Delaney did not disclose to the court.

In fact, the only case Delaney cited in his memorandum of law which involved an underage child was Rose v.
Beaumont Independent School District, which involved allegations of sexual assault made by a 14-year-old high
school student.6 In that case, the U.S. District Court for the Eastern District of Texas found the fact that the case
was filed against a public entity to be of critical importance in weighing the plaintiff’s request to proceed
pseudonymously:

In the instant action, Plaintiff is suing both the school district and individuals employed by the
school district. Therefore, because Thomas, Antoine, and Granger, have valid concerns regarding

4 Id. at 7-8 (internal citations omitted).

5 Doe v. Colgate Univ., No. 5:15-cv-1069, 2016 WL 1448829, (N.D.N.Y. Apr. 12, 2016); Doe v. Rose, No. CV-15- 07503-MWF-JC
at 5 (C.D. Cal. June 17, 2016); E.E.O.C. v. Spoa, LLC, No. CCB-13-1615, 2013 WL 5634337 (D. Md. Oct. 15, 2013).
6 Rose v. Beaumont Ind. Sch. Dist., 240 F.R.D. 264 (E.D. Tex. 2007).
 The Honorable Richard J. Durbin and the Honorable Lindsey Graham
RE: Michael Delaney’s nomination to the federal bench
April 6, 2023
Page 3 of 4

the impact of this case on their individual reputations, this factor weighs against allowing
anonymity….

Accordingly, in the instant action, fundamental fairness demands Rose not be allowed to cast
aspersions against the public school system and its educators while hiding behind a pseudonym. 7

St. Paul’s School is a private school; thus, these considerations—critical to the holding in Rose—would not have
weighed in favor of the school. Delaney omitted this critical information.

The duty of candor toward a tribunal is a bedrock ethical principle for attorneys. The New Hampshire Rules of
Professional Conduct require the following:

Rule 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to
the tribunal.8

This language is mirrored in the American Bar Association Model Rules of Professional Conduct. 9 While the
New Hampshire Rules do not explicitly require an attorney to disclose legal authority in a non-controlling
jurisdiction to a tribunal, Delaney’s decision to cite to Cabrera required him to interpret it faithfully to the court.
Selectively citing only those portions of the holding that supported his position and omitting the very relevant
analysis regarding the Cabrera plaintiff’s age as a factor in the Cabrera court’s decision, amounted to an
abrogation of Delaney’s duty of candor toward the tribunal, as it amounted to a violation of another ethical rule

7 Id. at 267-269 (internal citations omitted)(emphasis added).

8 N.H. R. Prof. Conduct 3.3(a), https://www.courts.nh.gov/new-hampshire-rules-professional-conduct (last visited Apr. 5, 2023).
9 Model Rules of Professional Conduct Rule 3.3, AMERICAN BAR ASSOCIATION,

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor
_toward_the_tribunal/ (last visited Apr. 5, 2023).
 The Honorable Richard J. Durbin and the Honorable Lindsey Graham
RE: Michael Delaney’s nomination to the federal bench
April 6, 2023
Page 4 of 4

– a lawyer’s duty to be truthful. 10 Such an omission may not be of utmost relevance in the conduct of an attorney,
who is expected to zealously represent his clients. However, it is evidence of a critical flaw in the character of a
potential federal judge.

Delaney’s selective presentation of the facts of the case he cited in his memorandum of law, combined with his
attack on Prout and her family for speaking out, constituted a manipulative attack designed to shift blame from
St. Paul’s School to Prout, the survivor. Psychologists refer to this behavior as DARVO, which stands for Deny,
Attack, Reverse Victim and Offender. 11 Those who use this tactic “deny their abusive actions, attack the
credibility of their victims, and reverse victim and offender roles such that the victim is portrayed as the…
abuse[r].” 12 Use of this tactic deflects responsibility from the perpetrators of abuse while simultaneously
diminishing survivors’ credibility. 13 This combination inevitably discourages other survivors from coming
forward out of fear that they will suffer a similar fate. 14 In using the DARVO-permeated tactics that he did,
Delaney was not merely engaging in zealous advocacy on behalf of his client but employing a questionable
litigation strategy that impeded the fair and impartial administration of justice. This type of behavior is
unacceptable at any level of our legal system and should disqualify Michael Delaney from an appointment to the
federal judiciary.

Those charged with interpreting and upholding American laws must do so with integrity and impartiality.
Delaney’s conduct in his representation of St. Paul’s School calls into question his ability to competently and
ethically protect the rights of all individuals who would enter his courtroom.

We urge the Committee to reject Michael Delaney’s nomination to serve as a United States Circuit Court Judge
on the United States Court of Appeals for the First Circuit.

Sincerely,

Elizabeth Abdnour Nancy Chi Cantalupo

Founder & Principal Associate Professor of Law and Associate Dean of
Elizabeth Abdnour Law, PLLC Diversity, Equity, and Belonging
Wayne State University Law School

10 See Model Rules of Professional Conduct Rule 4.1, AMERICAN BAR ASSOCIATION,
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_1_truthful
ness_in_statements_to_others/ (last visited Apr. 5, 2023)(“In the course of representing a client a lawyer shall not knowingly: (a)
make a false statement of material fact or law to a third person…”) and N.H. R. Prof. Conduct 4.1.
11 See Amanda Kippert, Explaining DARVO: Deny, Attack, Reverse Victim and Offender, DOMESTIC SHELTERS (Nov. 23, 2022),

https://www.domesticshelters.org/articles/identifying-abuse/explaining-darvo-deny-attack-reverse-victim-amp-offender.
12 See Sarah Harsey & Jennifer J. Freyd, Deny, Attack, and Reverse Victim and Offender (DARVO): What Is the Influence on

Perceived Perpetrator and Victim Credibility?, 29 J. AGGRESSION, MALTREATMENT & TRAUMA 897, 908 (2020).
13 See id. at 909-910.
14 See id. at 909.