Can lawyers be happy?

[Razgovory]

I'm curious if you consider that unethical.

I don't care.

You don't care if what I think or you don't care if their behavior is unethical?

[Barrister]

Here's the story Raz is probably thinking of:

[Razgovory]

I like that everyone has been talking about me lately.

[Barrister]

I like that everyone has been talking about me lately.

See DGuller?  How can you be mad, when all I did was make Raz happy? 

[Berkut]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

If your characterization is accurate then no, it isnt.  And if what you are saying is true the Court has mechanisms for dealing with such behaviour such as awarding increased damages and special costs.

That only works though if the court or someone can really prove it is happening, which is nearly impossible in any practical sense. At least that is what she was told by her lawyers. In her case it won't work because she has enough family willing to help her get through the year or two financial mess until the doctor/hospital is forced to settle a reasonable amount (which in her case will be something pretty close to what they would expect to be awarded at trial).

But this is clearly in the long and short term interests of their clients, so as an example that disproves the claim that one acting in the long term interests of your clients is "always legal and ethical" it works rather nicely.

Heck, another example.

Friend of mine when I was in high school, and his father was paralyzed permanently from the neck down in a swimming accident at a pool during a private party hosted by his mothers nursing company.

Basically, dad was drunk, and dove head first into a pool that was not very clean (hence he could not see anything in the pool), hit his head on a concrete slab in the pool, and was paralyzed.

Now, there was a life guard on duty, and the pool itself was privately owned (I want to say this was a hotel or something of the sort).

They sued, of course, and the hotel company didn't even fight - they offered up the total amount of their liability insurance, and pretty much said anything beyond that would bankrupt them.

So who else to sue to get the money necessary to support him for the rest of his life as a paraplegic? Why, the nursing company who threw the party! They should have known better than to have a party where they serve booze to people and there could be a pool that is dirty and some dumb drunk a-hole might hurt himself.

Now, is it likely that had this gone to trial a jury would have found the company dads wife worked for liable for his injury? Seems unlikely. But as one defendant in a lawsuit that included a lot of people, they decided it was better to just settle.

I don't think it was at all ethical to try to pin damages on them - but it was certainly in the best interests of their client to at least try. And in this case, it worked. The nursing company chipped in towards the overall settlement, and in fact I think had the largest dollar amount of everyone involved, not because they had the greatest rational liability, but because they had the greatest exposure. Again, from what I understood at the time, the "deep pockets" approach was considered very standard practice. But I cannot imagine how someone could argue that it was just or ethical.

One could argue that my friends fathers lawyers were acting ethically because their job is to look after the interests of their clients, and that is a good argument but is simply falling back on the tautological argument that serving the interests of the client is what is ethical by definition.

[Malthus]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

In Canada at least such behaviour risks an award of costs against the insurer on the indemnity scale. 

[Ideologue]

Beeb--Have you ever prosecuted someone under the auspices of a law you didn't believe morally should exist?

Edit: And would you do so if required?

Edit2: Have you ever asked for a penalty that you didn't believe in because the law said that it was required that you do so--like a minimum sentencing requirement?

You have two different factors.  "something that morally shouldn't exist" is one thing.  No, I've never done that.  And I wouldn't do that.  If the law mandated, I dunno, that a prisoner must be tortured upon conviction, I couldn't be a part of that.

[Razgovory]

I like that everyone has been talking about me lately.

See DGuller?  How can you be mad, when all I did was make Raz happy? 

Hey, about the story I apparently brought up, could a defense attorney give the police an anonymous tip or possibly tell the Judge off the record?

[Berkut]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

Thats pretty shitty Berk.

No, that sounds like classic "bad faith" to me, which isn't ethical - and in fact in a Canadian courtroom would get the insurer slapped with a bad faith lawsuit on top of the original lawsuit.  Way back at the dawn of time, when I adopted the name "BarristerBoy", I did insurance defence work.  And our instructions (both to our clients, and them to us) were that if a claim had obvious merit you paid it.  Not to say that an offer to settle just a few weeks after an incident wouldn't be a bit lower, but that's because to do so was in everyone's best interests - the victim gets their money faster, and the insurer is saved the cost of the lawsuit.

Yeah, it is pretty shitty, but how can you "prove" they are acting in bad faith? The legal process takes time, they have the right to ask for depositions, things get delayed, etc., etc.

But this is my point - the system itself has friction in it, and it is entirely possible to use that friction for your clients benefit in a manner that people think is unethical. But it happens all the time, and there is NOT some harm to doing so in many cases.

Sure, you could tighten up the process to make it not happen, and of course we do that all the time.

Going back to my example about pollution - if some business's lawyer figures out a way to exploit a loophole in a law to allow the company to start or continue polluting in a fashion the law was clearly intended to prevent, then yeah, you can (and of course should) revise the law.

But was it unethical for the lawyer to help the company circumvent the law in the meantime? I say it is, and hence your claim that one cannot act in a illegal and/or unethical manner while serving the best interests of their client is simply not true.

Of course, you've already admitted as much in response to my own anecdote - you find the actions of the doctors attorney's to be unethical. I agree with you. But I also think their actions are perfectly understandable, predictable, and even inevitable given the way the system is setup. They are, in fact, serving the best interests of their client by acting in this unethical manner.

Luckily for my sister she has family who can help her in the interim, so I don't think it will work.

[Barrister]

I like that everyone has been talking about me lately.

See DGuller?  How can you be mad, when all I did was make Raz happy? 

Hey, about the story I apparently brought up, could a defense attorney give the police an anonymous tip or possibly tell the Judge off the record?

"Hey cops, I can't tell you how I know this or who I am, but that guy just convicted for murder is totally innocent".

Not compelling.  Hell, I'm not sure how the lawyers say-so after 25 years constituted enough to overturn the conviction in the first place.  All they know is that their client claimed to have been responsible.

Now, if that confession had in turn revealed some hard evidence - if their client had told them where the murder weapon could be found - their might be some other options.

[Sheilbh]

But we all know this is not a "just" result in the particular, and I could certainly understand a lawyer feeling like an utter piece of shit for doing his job in a case like this - and I would not consider it "ethical", even if it is exactly what the lawyer ought to do.

The lawyer has duties to the court, so he can't fabricate evidence or knowingly allow perjury.

But also what's the alternative? Ultimately the decisions are for clients to take. In the pollution example should the lawyers choose not to advise their clients of all possible options and the risks of each (including a reputation hit)? In the criminal example you give, how is it ethical for a single lawyer to in effect decide whether someone's guilty or not?

Why does this not work for long?

In the UK the courts have very wide discretion in considering this when awarding damages and costs. For example you'll be almost always penalised if you turned down a settlement and then lose or fail to do as well in court. Arguably it's in the lawyers' best interests to carry on as they'll get more work, but the client needs to know and it may be in their best interests to settle.

I was told by the ethics lecturer I had that American lawyers were far more aggressively identify with their clients' best interests than British lawyers, but also because of that had a far more developed theory of legal ethics than we do. I think it's only relatively recently become a compulsory subject here.

Edit: Ethics as distinct from conduct rules by the regulator.

[Berkut]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

In Canada at least such behaviour risks an award of costs against the insurer on the indemnity scale. 

The is reliant upon a system that can identify and force a negative consequence.

Absent that, there is clearly an example of where it is the clients best interest for the lawyer to act in an unethical manner.

Hence the claim that acting in the clients interests is always in alignment with what is legal and ethical is disproven. Sometimes it is not, if the system lacks adequate safeguards against unethical behavior.

And lets be honest, there is no way anyone can claim there exists any system where there are not these kind's of loopholes in the law or the procedures that govern how the law is practiced.

[crazy canuck]

That only works though if the court or someone can really prove it is happening, which is nearly impossible in any practical sense.  At least that is what she was told by her lawyers.

I am not sure why  that would be.  Bad faith conduct is pretty easy for a Judge to figure out on the facts you set out. 

But this is clearly in the long and short term interests of their clients, so as an example that disproves the claim that one acting in the long term interests of your clients is "always legal and ethical" it works rather nicely.

Not at all.  If your characterization is accurate the defendant could be exposing itself to punative damages which in the US can be quite large.  Something not in either their short term or long term interest.  Because the manner in which litigators conduct themselves will always be open to scrutiny in open court we have an added incentive to act ethically to protect the interests of our clients.

Friend of mine when I was in high school, and his father was paralyzed permanently from the neck down in a swimming accident at a pool during a private party hosted by his mothers nursing company.

I don't think it was at all ethical to try to pin damages on them

I disagree, and so does a lot of case law.  This gets back to BB's statement that anything you think is right is ethical and anything you think is wrong is unethical.

[Neil]

You know, there has to be a better way of doing things.  Lawyering just isn't right.

[Berkut]

But we all know this is not a "just" result in the particular, and I could certainly understand a lawyer feeling like an utter piece of shit for doing his job in a case like this - and I would not consider it "ethical", even if it is exactly what the lawyer ought to do.

The lawyer has duties to the court, so he can't fabricate evidence or knowingly allow perjury.

But also what's the alternative?

I don't claim there is one - I am just saying that the idea that acting in your clients best interests is always legal and ethical is a fiction (and vice versa) is a fiction.