by Patrick Gaffney
As an attorney who has practiced family law in Clearwater, Florida, for a long time, I recognize that a crucial aspect of lawyering is the dignity and professionalism with which an attorney carries him or herself. However, as was observed recently, it is not always easy to regulate lawyer behavior. One of the areas of concern is that of gender bias. The legal profession is not immune to this problem.
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 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.1
Board member Wayne Robinson said no attorney should be subject to disciplinary action for a conduct that “can’t be clearly defined.”
As is evident from the positions espoused by these lawyers, regulating bullying is not easy in part because lawyers perceive their profession in different ways. What one lawyer might describe as bullying another may see as normal litigation tactics.
1 This blog was taken from: “Board finds Bullying Proposal too Vague”. The Florida Bar News. January 15th 2018. Retrieved from: https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2F2b5eaf03ae40fcc28525820c004e62f8
