Should lawyers be liable for their actions?

Great Debates
1

Story: a really rich guy got sued for half of his empire by some guy he met before he got rich. The second guy did not really have much of a case, so the rich guy was able boot him out of court.

Now the rich guy is suing the other guy’s lawyers because he thinks they should have known better, that they were really just in it to reap some juicy out-of-court settlement.

So, huh? My understanding is that the lawyers are there to roll in the slime so you are spared that pleasure. They are your advisors, not the primary actor (you), they cannot do anything without your direction (which may be implicit). I love lawyers no more than the rest of most of you, but they serve a sort of purpose.

What say you? Should lawyers be held responsible for providing faulty or questionable counsel? Seems to me a case like this cuts right to the heart of how the legal system functions, and though the system is often dysfunctional, this kind of thing might well render it non-functional.

2

Lawyers are officers of the court and owe a duty to the court and to the state. They’re not supposed to do just anything you tell them to.

They are most certainly not supposed to “roll in the slime.”

They are not supposed to waste the court’s time or use unjustified legal maneuvers that cost time and money.

Lawyers are not supposed to bring claims that are frivolous or vexatious.

3

Agreed with Ascenray.

If lawyers IRL behaved like lawyers in the movies the OP would make sense but most generally don’t.

That’s not to say that huge numbers don’t violate ethic laws and deserve to be disbarred, but in my own experience the guys like the lawyer from the Wire are the exception, not the rule.

4

They should have known better. Their client wasn’t some random Joe, he’s a convicted felon who was already under a restraining order for committing a different fraud at the time he was attempting to defraud Zuckerberg.

5

I’ve mooted before that lawyers on contingency fees should be liable for the other side’s fees if they lose.

6

Rule 11(b):

Where did this “understanding” come from?

Accountants work for, and take direction from, their employers. But they still can’t agree to certify an accounting method that violates accounting standards. In the same way, lawyers have a set of rules they must follow, apart from the direction of the client.

7

Well, they *are *liable. You can sue a lawyer for malpractice just like you can sue a doctor. Lawyers and law firms carry malpractice insurance for that very reason.

That said, since I’m not a lawyer and know nothing about the law, I have no opinion about the story to which you linked.

Years back I worked for a lawyer whose specialty was professional liability. He mostly either sued lawyers or accountants on behalf of his clients, or took them as clients and defended them if they were sued. He was (although it’s not relevant here) one of the smartest people I’ve ever met.

8

Yes, but I think the question raised by the OP is whether a lawyer should owe a duty (and bear a corresponding liablity) to people who are not their clients; whether they should owe a duty to the other side in the case.

9

Lawyers already have such a duty. As Bricker cited earlier, lawyers who file in federal court are governed by Rule 11. Most states have something that is virtually the same.

[QUOTE=Rule 11]
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
[/QUOTE]

I haven’t read any of the pleadings but the article makes it sound like a Rule 11 issue. If you follow my link, you see what the sanctions are for violating Rule 11.

10

What I see is the justice system is already not just. If a party can afford a large enough team of lawyers, they can find the clause or precedent that legitimizes a claim or minimizes an infraction. Establishing a trend of attacking lawyers like this would be likely to increase the overall imbalance in the system in the same way as “tort reform”. I am certainly not in favor of frivolity and fraud, but we certainly do not need to be working toward a worse system than we have now.

11

That’s known as the “English rule”. It discourages people from bringing civil actions even when they have a good case – in particular, it discourages poor plaintiffs from daring to sue deep-pocket businesses who can afford many top-dollar lawyers. That would be a very bad thing. The American rule (each side bears its own fees regardless of outcome) is better. (There are provisions where you can be assessed the other side’s fees but those are for narrow circumstances – in Florida, e.g., if I make a settlement offer and you reject it. we go trial and I win a verdict exceeding or within a certain percentage of that offer, I can recover fees, but only fees incurred after the offer. The purpose of that is to encourage settlement.)

12

Yes, lawyers owe a duty to the court and to the law in addition to their duty to their clients.

13

No, the English rule is that the *party *who loses pays the other side’s legal fees. It doesn’t make the losing side’s lawyer responsible for legal fees.

14

Isn’t this vulnerable to ex post facto logic, though?

If A defeats B in court, then A’s lawyers look good.

If A loses to B in court, then A’s lawyers look guilty of aiding frivolous litigation.

15

Lawyers are responsible for their actions. If they bring a meritless suit, they can be sued for malicious prosecution and if they abuse certain procedures, abuse of process.

16

Well, there’s more to frivolous than “didn’t win.” You can said for serious, meritorious reasons, and still lose.

17

Look at the Rule 11 criteria laid out above. Losing in court is not in there. If you bring frivolous litigation, you’d probably lose in court, but the judicial system is well aware that people lose in court with non-frivolous litigation.

18

Do you think lawyers are magical? That if you assemble enough of them, new facts spontaneously generate in history?

It’s not true that “a large enough team of lawyers” is guaranteed to “find the clause or precedent that legitimizes a claim or minimizes an infraction.” The law is not endless, or magical. Indeed, in today’s world, computerized databases brings legal research into reach for everyone.

19

While obviously it’s correct to say that no assemblage of lawyers is guaranteed to find (or create) a piece of law which proves their case, I think your second point is addressing a different concern, that of a larger law team being more able to find such precedent or language that could help. Even in the days of internet-searchable databases, the ability to put more researchers onto a task and legal minds onto work tends to suggest that, if affordable, many hands make lighter work.

But then I don’t think **eschereal **was being literal anyway, so.

20

As others have noted, frivolous litigation isn’t just losing. It’s more like never having had a case to start with, and knowing it.

For example, consider a sample case: Ordinary Joe sues Celebrity Sam for a traffic accident, and Ordinary Joe asks compensation for his injuries. The jury might decide that Ordinary Joe shared most of the fault, or that it was really Third-Party Theobald who was to blame, or any number of other “losing” verdicts that are not frivolous.

However, if Ordinary Joe AND HIS ATTORNEY knew at the outset that there weren’t any injuries in the first place, and that Ordinary Joe hobbling around on crutches and moaning about his pain was all an act, and that the whole purpose of the lawsuit was to be such a nuisance that Celebrity Sam would give them some money just to go away, then why should the attorney not be liable for knowingly filing a bogus suit?