When a litigant has absolutely no case, and when no judge or jury is going to buy it (and the lawyer knows it), are they under an ethical obligation to let the client know? Or do the ethics of the profession state that if the client really wants to sue (and their check clears), the lawyer is duty-bound to advocate for them?
The situation that prompted this involves rapper Afroman. To make a very long story short, cops in some municipality in Ohio convinced a judge to authorize a search warrant of his home because reasons. While there they were caught on Afroman’s home-security cameras trying to disable them. They found nothing, and it would later turn out that the warrant was sworn out under bad information. Afroman has been using the footage from the raid on his social media accounts, and even mocked the cops in a couple of songs. The cops are suing for damages because Afroman is making a fool of them. Or something.
This lawyer explains in pretty exacting detail how Ohio law protects Afroman’s videos and posts, particularly in light of the fact that they were done in the course of political/social commentary and/or a work of art. A song making fun of cops acting the fool in his home would absolutely qualify. To say nothing of the fact that the cops were doing their thing in the guy’s own home! And they illegally tried to disable his security cameras! Does anyone really think a judge or jury in Ohio is going to see otherwise?
Yet the cops have hired an attorney, which means some attorney is representing them. Should the attorney have told them, “Look, you have no case?”
Absolutely, if that was their opinion. In law, however, “no case” is rarely completely black and white. (Although sometimes it is). It is unethical for a lawyer to proceed with an argument that is not supported by the facts and law,and requires a reasonable inquiry into both. This is what the Trump lawyers were sanctioned for in their suit against Hillary Clinton. Those lawyers should have told Trump that there is no theory under which that was a legitimate case, and refused to file it.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
No private lawyer is required to represent any particular litigant. The most common way for a lawyer to inform a potential client that their case lacks merit is to decline to take their case. However, if they are paying on an hourly basis, there is not exactly a shortage of lawyers looking for work.
Much (most?) of litigation is making arguments with no absolute guarantee as to the outcome. In such a system, it is generally not too tough to make at least an argument that will not get you sanctioned. (Shows how out there Trump’s lawsuit was.)
It’s one thing to sue despite the facts being tenuous at best and no way the plaintiff will win - AKA “nuisance suits” like the case the police brought. (People for example sue for libel all the time, only to lose because “it’s the truth”) It’s another where (as I recall reading with a recent social media case) the lawyer brings a claim against a social media company for violating the fist amendment by kicking their obnoxious client off the platform. (Twitter? Facebook?) IIRC they used some very tenuous claim that because X provides information to law enforcement when asked, that obligated a private company to follow constitutional principles that only apply to the government… This is the same idea as filing suit about voter fraud with no evidence of the level of fraud claimed.
I’m more curious about lawsuits that are taken which are patently absurd, like when somebody claimed to own the sun and wanted a royalty check from the entire world, or the woman who during her divorce proceedings claimed the money her husband stole during his career as a criminal were 50% owed to her.
I had a situation recently (which I will not go into detail on) where the lawyer I contacted was sympathetic to my situation, and agreed that the other party would likely be willing to settle out of court rather than undergo the publicity of a trial, but that he could find no precedent for the situation being legally actionable, and that therefore it would be unethical for him to take my case. To be fair, he did put in some effort to find such a precedent.
She has filed an actual suit (in Spain), but it’s much narrower: she claims to own the sun, and was selling title to 1 square meter of it on Ebay. Ebay decided that was a scam (since buyers got nothing tangible) and removed her ads from Ebay.
Her lawsuit is actually against Ebay, claiming that the removal was a violation of their contract with her in the Sellers Agreement.
I was a juror in a civil case where a woman was suing BART for being injured in the elevator. I was under the definite impression that BART offered her a settlement that she didn’t think was adequate. During jury selection the BART attorney asked all the normal questions. Her attorney asked none and seemed bored. We were seated and went home, and when we arrived back at court in the morning we were told the case was settled and we were dismissed.
I got the impression that her attorney had told her to settle but she was holding out for a jury that would be sympathetic to her plight. She didn’t get the jury she wanted and decided to listen to reason.
So even if the attorney has to spell out the facts, the client doesn’t have to listen, right?
My hunch is that a deal was in the works but not quite final. They went through the motions on day 1, knowing there would almost certainly be no day 2.
There is a tradition in England of civil cases being settled “on the steps of the court”.
These days it’s probable that they agree a settlement earlier than that, but the implication is of an agreement at the last minute before the costs start to mount up.
The one time I was called for jury duty (Criminal trial), and same happened with my wife, they cancelled the call a week or two before the date. My impression was the defense did not like the deal offered, and said “fine, we’ll take it to trial.” Thus, forcing a more lenient settlement.
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