Friday, April 13, 2012

Pop quiz on professional ethics!

Inspired by this Philip Thomas post ....

PREMISES: You're a trial lawyer with considerable success in premises-liability cases in a particular venue. A potential client wants to hire you to file such a suit for him in that venue.

The facts strike you as dubious at best, and on the one hand, you don't really think he's entitled to any significant relief.

On the other hand, you've won six- and seven-figure verdicts in this venue for some pretty dubious plaintiffs. You can predict that, with a little luck on the judge assignment and jury pool, you can do the same for this guy. It may not stand up on appeal, but then, the insurer may settle rather than risk your going to a jury.

If you haven't accepted the client, is it unprofessional to take his case?

... My answer in the comment thread.


  1. The answer to this question requires you to ask yourself, what is "justice"? Is it what I think is the right result in this case, or is it what the judicial system is likely to produce?

    I think the latter is a perfectly defensible answer, and thus it's not unprofessional to take the case.

  2. If taking the case, and filing the lawsuit are 2 separate things, then you can take the case, but I think Rule 11 prohibits you from filing the lawsuit. In my view, "taking the case" entails doing everything ethically possible to advance the client's best interests, including the filing of a lawsuit. Ergo, taking the case and filing the complaint are one and the same. I believe one is ethically precluded, under these circumstances, from taking the case. My only concern is your use of the words "significant relief". If the potential client is entitled to any relief, a lawsuit could be filed, but not one seeking relief beyond that to which the lawyer genuinely believes the client is entitled.

  3. But where does my sense of due entitlement come in? It seems unjust this plaintiff could recover, but I also believe he could do so.

    Cf a tax lawyer who knows a deduction is construed by the courts to include certain income, but the lawyer thinks the courts have the statute wrong: can't he advise his client to claim that deduction?

    Back to Holmes I guess: is the practice of law any different than a prediction of what the courts will do with a case?

  4. My thinking is that if you believe the facts are dubious as to whether the law justifies recovery, your only ethical choice is to "take the case" and file the complaint only if you believe the law is unjust and should be changed. In your above hypo, you say that the tax lawyer believes that the court got it wrong. So be it, then you have a good faith claim. If your belief, on the other hand, is that you may get by in a certain jurisdiction with a certain jury pool and certain judge and want to risk it to see what you might get from the insurance company: a. you are violating rule 11 because your client's claim is actually frivolous; b. you are the ammunition that insurance companies and their tort-reform allies in the legislature need to further deride and diminish our profession; and c. you are going to strengthen the walls for people with real needs in our state by creating nearly-impossible-to-overcome appellate law if the insurer takes your bluff; which they will, because d. too many of these numbskulls did this in the 1990's. Just my $0.02, for what they are worth.

  5. saw your comment at JJ on the hinds circuit issue. MC law school/library "Judicial Data Project" will crunch the numbers on any judge/justice for the time period covered by the project. It is a great tool for trial and appellate litigators.

  6. In your fact pattern, you acknowledge that the client has a claim, it's just not a very strong one. If a jury awards your client more than you think the claim is worth, how does that make you unprofessional?

    If you've got a good faith basis (and that's a pretty low bar), it's up to the judge and jury to decide things.

    However, if you're knowingly committing reversible error just to get a jury verdict, because you know the defendant can't afford to appeal and will be forced to settle, that's unprofessional. And I know "a particular venue" where this happens a lot.

  7. Agreed, 8:03. Though I would add that a lawyer can't commit reversible error - only a court can do that. And some courts appear happy to do so, at least for particular attorneys.