86th Installment. Florida State Bar enforces “political correctness”—the Mitchell and Mooney matters

In events many observers find unfathomable, the Florida State Bar disciplined two lawyers for trading e-mailed insults. What’s unfathomable to the observers is not, unfortunately, the Florida Bar’s disciplinary action but the attorneys’ conduct, whose frequency in general practice everyone underestimates. In this Installment, we’ll “fathom” both the Florida State Bar and its victims.

Comparing the severity of disciple imposed on each—10-day suspension for Kurt D. Mitchell but only a public reprimand for Nicholas F. Mooney—betrays its motive. What occurred between them is sometimes termed a “flame war”, an escalating exchange of insults, often attributed to the absence of the inhibitions direct contact would foster. The only significant difference between the two attorneys’ conduct consists in the political incorrectness of Mitchell’s mockery of Mooney’s handicapped offspring: While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces. Compare with Mooney’s strongest: Then check your children if they are even yours. Better check the garbage man that comes by your trailer to make sure they don't look like him.

To politically correct moralists, Mitchell’s comment, because it ridicules a specific “incorrect” human target, is tantamount to harming it. Moralistic political correctness habitually misidentifies the object of harm, and this confusion facilitates similar swindles, such as the practice of charging injury to client whenever the Bar is inconvenienced. Here, the Florida Bar took this justification full circle by shedding hypocritical crocodile tears for the attorneys’ clients.

The Florida Bar had no legal basis for this discipline. It invoked its freakish interpretation of “dishonesty,” an all-purpose charge when the state bar finds no chargeable offense or hungers to compound an existing charge. “Dishonesty” plays the same role in Florida as “moral turpitude” in California, and the verbiage reciting the state bar’s artless justification of this characterization is, expectedly, where the Bar sheds tears—because, you see, the clients expected diligent pursuit of their interests, instead of indulgence in such mischief! Harm to both attorneys’ opposed clients is almost inconceivable in adversarial settings, and the nonexistence of any proof of client harm proves clients are the Florida State Bar’s least worry. Both Mitchell and Mooney should appeal the culpability findings as a due-process deprivation, because of the absence of forewarning that insulting opposing counsel would constitute actionable “dishonesty,” a charge that, had it been applicable, would warrant much more severe discipline.

That’s due process under the Fifth Amendment (as applied to the states by the Fourteenth), but what about the First Amendment? Some less narrow-minded observers suggest that the Florida Bar punished Mitchell and Mooney for protected speech, but unfortunately, the U.S. Supreme Court refuses to afford First Amendment protection to invective; the doctrine of unprotected speech is why authoritarian “fighting words” laws pass muster. Although the fighting-words doctrine doesn’t apply when, as here, the parties utter them on their own property, the speech remains unprotected and targetable by profession codes.

The First Amendment protects rights beside speech. Commission of the supposed misconduct in the course of representing clients works in respondents’ favor if they proceed under the right to petition. Although the Florida Bar charged the two with dishonest conduct with clients, the charge prejudges their tactical effectiveness. Conceivably, the flaming was an effective strategy.

Relatively effective, that is. I wouldn't hire them, and their conduct illustrates a deep problem in the profession: incompetent, bullying attorneys. If this tactic was relatively successful, it was so because their repertoire contained no alternatives; attorneys incapable of legal sophistication resort to bullying, but intimidation requires that they can intimidate their opponents. With bullying the one tool in your box, you make do; at least you’re justifying your fees. It gets more interesting when two bully attorneys confront each other, because each, skills limited to bullying, can only escalate hostilities. If some 15% of attorneys belong to this genus, then maybe two or three percent of cases include similarly escalating affronts.

I little doubt Mitchell and Mooney are both bully attorneys, whose limitations damage the profession. Mitchell and Mooney showed that their conduct was tactical: although their insults escalated, they were never out of control. They stayed on the right side of the line as they understood it, never, for instance, using profanity or obscenity. Each—sharing the insults with coworkers and bosses—thought his conduct was proper. Was it? Yes and no: this case isn’t about incompetent, bully lawyers. The state bars don’t intend to address that problem, because state-bar prosecutors are of precisely this type.