Posted by
NOTLEGALROADKILLYET on Monday, August 28, 2006 9:22:52 PM
In most professions, practitioners fear lawsuits and will not normally do something that the profession considers unethical to aid a client.
Attorneys have no such fear. Think of an attorney as a three year old who wants to raid the cookie jar. If he thinks he might be told "naughty boy," but get to keep the cookie, there isn't a lot of disincentive to keep him from raiding the cookie jar.
Unlike three year olds, attorneys don't expect to get caught because litigants have no ability to make complaints against an attorney, except through the trial judge. Even if the trial judge forwards a complaint to attorney regulation, attorneys are very unlikely to receive more than a slap on the hand if they take care to appear "remorseful."
Actually, a "slap on the hand" was overstating the routine level of punishment for some infractions. What the attorney is likely to get is "public censure," a which is a written scolding, "naughty boy."
Suppose, for the sake of argument that an attorney wanted to delay a trial as long as possible in the hope that the plaintiff would give up, or that witnesses would forget the events, or that the paperwork would disappear. How could he go about doing that with little or no risk?
It turns out that there is a wonderfully useful bit of case law that does exactly that. If an attorney is willing to play chicken with a judge over the issue of a default judgment, the attorney can bring a lawsuit to a dead stop. If the judge actually issues the default judgement, the attorney can "admit fault" while the Defendant claims his attorney wasn't talking to him to get the default judgement reversed.
The only downside to this strategy is that the case law requires that the plaintiff's attorney fees be paid and that the judge must recognize that documents might have been lost over the time the attorney was running the stall.
From an ethics standpoint, the attorney only risks "public censure," if ethics case law is followed, and then only if the trial judge actually will refer the attorney to attorney regulation.