Posted by Eugene Volokh:
Better Legal Treatment Mandated for Lawyer Defendants Than for Others?
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236352257
That's what [1]Sayers v. Prugh, Holliday & Karatinos, an Eleventh
Circuit decision from earlier this week, suggests. Sayers sued her
employer for alleged failure to pay overtime, but her lawyer didn't
even call the defendant to negotiate a payment before filing suit. The
defendant ultimately accepted a small settlement:
Sometime after discovery closed, Defendants tendered an offer of
judgment under Federal Rule of Civil Procedure 68 for $3,500 plus
any attorney�s fees and costs to which the district court
determined Plaintiff was entitled. Defendants denied all liability
in the Rule 68 offer. Plaintiff accepted the Rule 68 offer....
Plaintiff, through her lawyer, timely moved for her litigation
expenses [which were potentially available under the federall
overtime statute]. She asked the district court to award her
$13,800 in attorney�s fees and $1,840.70 in costs....
[T]he district court denied attorney�s fees and costs. The district
court wrote that �there are some cases in which a reasonable fee is
no fee� and found that this case was such a case.
Now it may well be reasonable to award little or no money in fees and
costs when a plaintiff's lawyer fails to use less expensive dispute
resolution techniques -- calling or writing -- and instead files suit
right away. But what troubles me is that the court's rationale didn't
focus on protecting defendants generally, or protecting courts from
having to deal with needless lawsuits generally. Rather, it focused
chiefly on civility between lawyers (albeit with an eye towards
eventually reducing litigation overhead as a result of such greater
civility):
Defendants are lawyers and their law firm. And the lawyer for
Plaintiff made absolutely no effort -- no phone call; no email; no
letter -- to inform them of Plaintiff�s impending claim much less
to resolve this dispute before filing suit. Plaintiff�s lawyer
slavishly followed his client�s instructions and -- without a word
to Defendants in advance -- just sued his fellow lawyers.
[Footnote: This explanation counts for little: a lawyer�s duties as
a member of the bar -- an officer of the court -- are generally
greater than a lawyer�s duties to the client. See Malautea v.
Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993) (�An
attorney�s duty to a client can never outweigh his or her
responsibility to see that our system of justice functions
smoothly. This concept is as old as common law jurisprudence
itself.�); Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1327
(11th Cir. 2002) (�Independent judgment is an essential ingredient
of good lawyering, since attorneys have duties not only to their
clients, but also, as officers of the court, to the system of
justice as a whole.�) (internal quotation marks omitted).]
Plaintiff�s lawyer showed little concern for the district court�s
time and energy and no courtesy to his fellow lawyers. As the
district court saw it, this conscious disregard for
lawyer-to-lawyer collegiality and civility caused (among other
things) the judiciary to waste significant time and resources on
unnecessary litigation and stood in stark contrast to the behavior
expected of an officer of the court. [Footnote: The customs of
professional courtesy were important to the district court. In its
written order, the district court used these words: �This Court is
not ruling that a pre-suit letter is always required, but in this
case, the Plaintiff�s lawyer did not even make a phone call to try
to resolve the issue before filing suit. The Defendant is a law
firm. Prior to filing suit in this local area, it is still
reasonable to pick up the phone and call another lawyer so it won�t
be necessary to file suit. The defense proffered by Plaintiff�s
lawyer for not doing so is that his client instructed him to file
suit first and ask questions later.... [T]he Court reminds him that
the lawyer is the officer of the Court, not the client. This
[C]ourt will not permit lawyers to file unnecessary litigation and
palm it off on their clients.�]
The district court refused to reward -- and thereby to encourage --
uncivil conduct by awarding Plaintiff attorney�s fees or costs.
Given the district court�s power of oversight for the bar, we
cannot say that this decision was outside of the bounds of the
district court�s discretion. [Footnote: We have said that a court
may not sanction a lawyer under its inherent powers absent a
showing �that the lawyer�s conduct constituted or was tantamount to
bad faith.� We have assumed that awarding no attorney�s fees and
costs constitutes some informal sanction. Nevertheless, even if bad
faith is required, we conclude that the conscious indifference to
lawyer-to-lawyer collegiality and civility exhibited by Plaintiff�s
lawyer (per his client�s request) amounted to harassing Defendants�
lawyers by causing them unnecessary trouble and expense and
satisfied the bad-faith standard.]
We strongly caution against inferring too much from our decision
today. These kinds of decisions are fact-intensive. We put aside
cases in which lawyers are not parties. We do not say that pre-suit
notice is usually required or even often required under the FLSA to
receive an award of attorney�s fees or costs. Nor do we now
recommend that courts use their inherent powers to deny prevailing
parties attorney�s fees or costs. We declare no judicial duty. We
create no presumptions. We conclude only that the district court
did not abuse its discretion in declining to award some attorney�s
fees and costs based on the facts of this case. [Some paragraph
breaks added.]
Much of what the court says is quite reasonable, to a point. A
lawyer's duties as officer of the court may well be greater than the
lawyer's duties to the client -- consider for instance the duty of
candor to the court. And uncollegial behavior between lawyers as
representatives of the parties can indeed waste the time of the court
as well as hurting the clients.
Litigation is often a long process, in which many steps -- for
instance, discovery -- can be done either very expensively, through
repeated arguments before the court, or less expensively but often
with the same practical result, by agreement between the parties and
their lawyers. Human nature being what it is, such agreement is much
less likely if the lawyers have been needlessly unpleasant to each
other. So rudeness among lawyers may indeed lead to unnecessary
consumption of the court's time and of the clients' money, often
without even any real tactical advantage to either client. (Sometimes
hardball or even unpleasant behavior does benefit the lawyer's client,
but often it doesn't.)
But all those things apply regardless of who the clients are. Better
treatment of lawyer-defendants than doctor-defendants or
businessperson-defendants strikes me as much more troublesome, whether
the treatment is justified as a matter of "civility" or otherwise.
Lawyers should be civil to nonlawyer adversaries as well as to lawyer
adversaries. And nonlawyer defendants should be as entitled as lawyer
defendants to the benefit of either rules or (as here) discretionary
judicial decisions calling for (for example) prelitigation discussion
rather than immediate and expensive filing of lawsuits.
This having been said, I acknowledge that there can be nonlaughable
public-regarding justifications for better treatment of lawyer
defendants: It's possible, for instance, that the ill will generated
by uncivil treatment by lawyer A of lawyer defendant B will cause
acrimony between A and B in future cases, and will thus waste future
courts' time and future clients' money. That wouldn't play out the
same way if B weren't a lawyer. But it seems to me that such
speculation shouldn't suffice to justify legal decisions that
expressly discriminate in favor of lawyers-as-defendants.
References
1. http://www.ca11.uscourts.gov/opinions/ops/200810848.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
