The blind squirrel is alive and well in Florida, as the Bar Association gets one right.

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.

Of course they have a special committee on gender bias, and what would you expect such a special committee to do? The rule they sought to change is 4-8.4(d), which makes it misconduct to:

(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic;

After all, what sort of horrible lawyer would discriminate against a litigant on the basis of socioeconomic status, like, oh, paying legal fees? Or disparaging litigants by calling them, you know, rapists or murderers? So horrifying. But hey, what about “bullying and intimidation”?

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.

Some might even say that intimidation is a valuable part of the lawyer’s arsenal, the ability to scare the living crap out of a witness, or a kid attorney, in order to achieve a client’s ends. Remember clients? Those are the people we serve, whose lives and fortunes are placed in a lawyer’s hands and who depend on our using every lawful means available to zealously represent them.

If a witness can be intimidated into admitting a lie, that’s what we do. If our adversary can be intimidated into offering a better settlement, a better plea, that’s what we do. But what about bullying?

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.”

Bullies are bad. Everybody says so. Surely, no frail lawyer wants to be manhandled into the courthouse restroom and given a swirly, right? Except that’s not really the problem. While people use the word “bullying” all the time to refer to other people’s actions that make them feel badly, coerced, pushed into an uncomfortable position, is that bullying or is that just a lawyer using the word as a substitute for being weaker than his adversary?

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.”

And Friedman nails it, despite whatever the sad sacks of the bar claim between sobs and moans. If a lawyer can’t manage to handle an adversary who tries to “bully and intimidate” them, they have no business being a lawyer. Somebody was mean to you? Awww. You can either kick their butts across the room or ball up in the corner and cry about the mean lawyer.

Lawyers are fighters. Not necessarily as a personality type, but as a professional duty. If you’re not up to the fight, then there’s always that assistant manager job at Dairy Queen where your biggest issue will be whether a customer complains that you under-sprinkled his cone.

While the American Bar Association has been overtaken by the unduly emotional forces of social justice, the Florida Bar Association has refused to succumb to the current flavors available from Mr. Softie. For once, they got it right. At least for now.

H/T Skink