Lawyers vs best interests of clients?

My questions: What responsibility does a lawyer generally have to advise their potential or actual client that a case is a waste of the client’s money and time? Does the lawyer expose himself or herself to any liability for accepting obviously hopeless cases?

I was recently sitting in general sessions court here in TN awaiting my case to come up. (Representing myself, I won. Woot!) General sessions court in TN appears to handle all kinds of stuff: small claims, traffic, criminal, etc.
Having never been in a real court before, I entertained myself by watching the proceedings of other cases. What struck me as strange was the number of cases that were contested that, in my opinion, shouldn’t have ever gone to court. I’m not talking about cases where individuals represented themselves but cases in which one or both sides had (expensive) lawyers. I’m not a lawyer but, even with my limited knowledge, the cases were slam dunk.


A woman’s apartment building burned down and she sued the apartment company for the value of her possessions. Every time I’ve very rented an apartment, the apartment folks were very clear and repeatedly reminded residents that, in case of fire, the apartment company wasn’t responsible for renter’s possessions (and thus the renters should get renter’s insurance or deal with the loss).

In a second example, a mentally ill woman was petitioning for an order of protection against a friend. The friend had simply sent the mentally ill woman a few emails urging the mentally ill woman to get help for her declining mental state. The mentally ill woman was offended by the few emails and charged harassment. The strange thing about this case is that the mentally ill woman, by taking the case to court, was subjected to public testimony and rigorous cross examination about her mental condition. It seems to me that the legal aid attorney subjected her client to the very issue that the mentally ill woman wanting to avoid in the first place (questions about her mental status). Own goal.

So…assuming no complicating issues (such as gross negligence on the part of the apartment owners)…does an attorney have a responsibility or any liability in taking to court issues that are not in the best interests of the client? For example, as in the apartment fire case, of wasting the client’s money on attorney fees. Or, in the mental illness case, of exposing the client to the very issues the client wants to avoid?

What say ye?

And I know, you aren’t my attorney, blah, blah, blah. This is a general curiosity.

A lawyer should answer this.

However, in layman’s terms, it’s my understanding that a lawyer has an ethical responsibility under his state’s Canons to give good advice to his client and then follow the client’s instructions, even if they go against his advice. In other words, the lawyer is obligated to say, “Your case has the likelihood of succeeding of Frosty the Snowman sent to harrow Hell,” but if the client says, “I want to sue the bastards anyway,” he’s obliged to proceed (or to terminate the lawyer-client relationship on mutually agreeable terms). If he recommends a frivolous suit in order to collect fees from his clients, he’s subject to reprimand and potentially disbarment from the state courts and/or bar association.

Abraham Lincoln was a noted trial lawyer before his election to the Presidency. See the second boldfaced paragraph here, beginning, “Discourage litigation.” It’s good advice, then and now:

This is an interesting question…I have often wondered about the responsibilities of a lawyer, in regard to fraud. Take an automobile accident-a guy shows up at the lawyer’s office, claiming severe injuries. You (the lawyer) find out that this guy has been involved in several similar “accidents” in the past five years. Are you right to be suspicious? Suppose you take him at his word, and file a lawsuit against the other party. You win the case…then discover they guy was lying.
What is your obligation?
Or, thae these lawsuits against fast food restaurants. You have a client who weghs 500 pounds (because he ate copious amonts of fast foods). You file a lawsuit on his behalf-should you advise your client to go on a diet? Or are you obligated to deliver a full court press against the fast food vendor?

Neither of those cases is a slam dunk. OPs are almost always granted, the issue of the petitioner’s mental state is probably not a useful one.

As for the apartment fire case, negligence on the part of the landlord is not unusual.

Anyway, lawyers should tell the client when the client’s goals and expectations are unreasonable. Lawyers should reject cases when the client’s motive is to harass someone, or if the case is genuinely frivolous, either legally or factually (note that frivolous doesn’t just mean a low chance of success). One should also refuse a case if they are incompetent to handle it, or if they have personal issues with the case that would make them unable to effectively represent the client.

You seem to be asking for the definition of “frivolous”, but that determination is difficult to make. Neither of the cases you listed even come close.

As far as Lincoln’s advice goes, it’s generally better to settle things before it gets to the trial phase, but of course sometimes that isn’t possible, and ultimately it is the client’s decision as long as they can pay for it and the case isn’t the sort of frivolous matter that would get a lawyer in trouble.

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Neither of those cases is a slam dunk. OPs are almost always granted, the issue of the petitioner’s mental state is probably not a useful one.

Sad…since, in the order of protection case, the obvious answer for the layperson is to not get involved. The person that got involved was a good samaritan but, from a legal perspective, it sounds better to not get involved at all. If the mentally ill woman wants to drive her kids into the lake, so be it. Ironic since the state’s motto is “Volunteer State.” Sounds like the New York stereotype of “not getting involved” is the prudent course.

As far as the apartment case, assuming the fire started from the kids next door playing with lighter fluid, still not frivolous?

Yes. You can send him packing if you choose. It’s called the sniff test. Don’t take a case that fails the sniff test.

You are not allowed to breach confidentiality, so you clam up. Note that if you discovered that the guy was lying during the case, you would have been obliged to not permit him to mislead the court, and if he did, you would be obliged to quit on the spot, albeit without saying why to the court due to your not being allowed to breach confidentiality. Confidentiality with a client can only be breached in very limited circumstances, such as when you have good reason to believe the client is going cause serious bodily harm or death to someone.

You can advise on legal issues but not on medical issues. Refer el blobo to a doctor and let the doctor tell him to go on a diet. If you tell him to go on a diet, you are not covered by your errors and omissions insurance should he sue you at a later date for the alleged harm the diet caused him.

You are not obligated to take on a client if you do not want to. On very rare occasion, a judge might force you to take on a client, but usually that is usually just a band-aid step rather than permanent representation, and is done to keep the person from shooting himself in the foot in court. If you have taken a client’s case on, you usually can bail out if things do not work out between you and the client (e.g. if you discover facts that greatly reduce your client’s chance of winning, or if your client can’t come up with the cash to fund the case because he keeps spending his paycheques at McDonalds). If you take the matter all the way up to a trial, the court often will not let you bail out at the last minute, for that would either bugger things up for your client, or unduely delay the case while your client tries to get another lawyer up to speed for the trial.

It’s perfectly fine to file a lawsuit so you can conduct discovery. It might have been a kid, it might have been faulty wiring, etc. There’s really no way to tell.

My sister is a lawyer, and she has two answers:

1). There are a lot of bottom feeders out there. Attorneys who shouldn’t be practicing. They’re incompetent, they don’t understand procedure, but they do understand that it costs more to go to court than to settle. Thus, they threaten to sue and will even start a case. You can easily win, but the time and effort will be costly. Many people simply will settle to avoid the expenses.

2). The attorney represents the client, and in the end has to do what the client wants to do. Once you’re an attorney, you can advise the client, beg the client, and plead with the client. You can threaten to hold your breath until you turn blue, but if the client insists on something, you have to do what you can. For example, an attorney might plead with the client to accept a plea agreement, but if the client insists on pleading innocence, you plead innocent. An attorney can tell a client they should not testify on the witness stand, but if the client insists, so be it.

Many attorneys come up with brilliant legal strategies only to have them undone because of a recalcitrant client.

“Thanks for all the feedback! Already feeling much more enlightened!!”