Posted by
NOTLEGALROADKILLYET on Monday, September 18, 2006 5:02:10 PM
This is a multi-part series with the premise that the legal ethics system appears to have been intentionally designed to fail. It
begins here. The last post,
part-1 is here.
If the ABA intended that judges who report unethical conduct be immunized from cardboard box lawsuits, it doesn't appear that the Colorado Supreme Court did. Neither the ABA nor the Colorado Supreme Court appear willing to immunize attorneys who either attempt to report unethical conduct themselves or who assist their clients in doing so.
Let's assume that a litigant spent a number of years trying to pry legitimate discovery from the Defendant. Let's also, without defining the tactics involved, assume that the defense attorney used every passive-agressive tactic available to thwart both the production of discovery and the deposition that would follow, and thus delay the trial. Assume also that there is an ethics code rule that would appear to prevent this, and the defense attorney appears to the litigant to be in obvious violation of that rule.
If the litigant can report this violation directly to Attorney Regulation, the defense attorney might try a cardboard box lawsuit, but unless he was able to fill the jury box with lawyers, he is highly unlikely to prevail. Much of the attorney's conduct is likely documented both in court documents and in the litigants attorney's files in the form of unanswered letters, multiple motions to force production, etc. Juries dislike attorneys anyway, and an attorney who appears unethical isn't going to win many lawsuits. The only question is whether the litigant can recover his legal fees.
Likewise, a Judge who appears to have acted evenhandedly may be relatively safe from losing a lawsuit, though probably not as safe as our litigant. If he wins, professional courtesy would likely demand that his legal fees be paid by the lawyer.
In this hypothetical situation, the one individual who might well be vulnerable to a cardboard box lawsuit is the litigant's attorney if prepared or helped file the complaint. A lawyer on lawyer lawsuit is an iffy thing at best, and the costs of such litigation can easily be 10 to 50 times the fees an attorney might collect for doing the work. And that 10 to 50 number is only if he wins!
For that reason, attorneys are well advised not to facilitate complaints against other attorneys, and if they must, to be so conservative, so mild in their wording that the complaint loses its meaning. To do otherwise puts their financial health in jeopardy.
The point that is being made is that if a litigant is facing an attorney who has a long history of stalling the lawsuit, the litigant is far better off if he/she makes a complaint directly to Attorney Regulation. . . unless, of course, there were something to prevent that.
Part 3