Board finds bullying proposal too vague
Board finds bullying proposal too vague
A well-meaning attempt to strengthen protections against bullying in the legal profession may have gone too far, at least according to the Board of Governors.
This fall, the Rules Committee voted 7-0 to add guidance that subdivision (d)’s prohibition applies to “bullying and intimidating other lawyers,” in the comment to the Misconduct Rule (4-8.4). The proposal grew out of a recommendation by the Florida Bar Special Committee on Gender Bias.
But at its December meeting the board overwhelmingly rejected the proposal after several board members warned the language is too vague or the move would invite “unintended consequences.”
Board member Dori Foster-Morales of Miami praised the intent, but said she felt existing rules are sufficient.
“This is sort of a whole new level of action, and I’m uncomfortable with it,” she said.
Board member Michael Tanner of Jacksonville noted that Rule 4-8.4 addresses “conduct committed by a lawyer while performing duties connected with the practice of law.”
Banning “bullying” and “intimidation” in that context would put any lawyer who conducts an aggressive deposition or writes a strongly worded letter on behalf of a client at risk of formal disciplinary action, Tanner said.
“How many of you have defended a deposition and had your witness systematically dismembered by a very forceful, but very professional, deposition-taker on the other side? Is that intimidating? You bet it is,” Tanner said. “As sure as we sit here, somebody later will say, ‘Well I got that letter, I’m feeling very intimidated by it.’ And off we go.”
Intimidation, Tanner said, is often in the eye of the beholder.
Board member Wayne Helsby, whose Winter Park firm specializes in labor and employment law, said “bullying” defies a clear-cut legal definition.
“I represent a number of school districts, and school districts have been grappling with this issue,” Helsby said. “It’s an ambiguous term.”
Board member Wayne Robinson said no attorney should be subject to disciplinary action for a conduct that “can’t be clearly defined.”
Beverly Hills, Calif. attorney Richard Friedman, an out-of-state Bar member, sent the only written response to the board’s formal notice of the proposed rule change. Friedman urged the board not to adopt “Nanny rules to protect attorneys.”
“First, it is commonplace for good lawyers to assess the deficiencies of their legal opponent and to use that for the benefit of their clients,” Friedman wrote. “Secondly, any attorney who can be bullied or intimidated by another attorney should resign from the legal profession.”
