Can lawyers be happy?

[Berkut]

I used to do quite a bit of work for an insurance services company (they adjusted claims), and obviously they got sued all the time. Their general counsel explained their policy to me--they would work with the client to resolve disputes to prevent litigation, but once a case was filed, they would aggressively defend themselves. This was especially the case if the plaintiff's attorney was new to suing them. The point was to make clear that they were not an easy mark to the plaintiff's bar and deter future lawsuits. I would guess that could look like what Berkut is describing in practice.

Certainly could be the case - but I would still consider that unethical, since they are simply trying to "fight" a legitimate lawsuit not on the merits, but rather as a means of discouraging other lawsuits.

Which isn't to say they should not do just that - I don't really buy into the idea that lawyers are all paragons of virtue and justice, so I am not upset that they put the interests of their clients ahead of concerns about being "ethical" to the public's standard.

[Savonarola]

While I don't dispute that, it may be both happy

Shakespeare says NO!   (though that may be ironic)

and ethical,

Camus says NON!.

as well as popular among the idle rich. 

Edward Arlington Robinson says YES!

And, well, it "brings on many changes."  Can you tell the lyrics were written by a 14 year old?

EDIT:  From Wikipedia: "The song was written specifically for Ken Prymus (the actor playing Private Seidman), who sang it during the faux suicide of Walter Waldowski (John Schuck) in the film's "Last Supper" scene.[1][2] Robert Altman had two stipulations about the song for Mandel; first, it had to be called "Suicide Is Painless", secondly, it had to be the "stupidest song ever written".[3] Altman tried to write the lyrics himself, but found that it was too difficult for his 45-year-old brain to write "stupid enough".[4] Instead he gave the task to his 14-year-old-son, Michael, who apparently wrote the lyrics in five minutes.[5][6]"

  Altman's done some pretty stupid things (some of which I like quite a bit -- like Short Cuts) but nothing quite that sublimely stupid.

No, I didn't know that.  That's great.

[alfred russel]

Certainly could be the case - but I would still consider that unethical, since they are simply trying to "fight" a legitimate lawsuit not on the merits, but rather as a means of discouraging other lawsuits.

Which isn't to say they should not do just that - I don't really buy into the idea that lawyers are all paragons of virtue and justice, so I am not upset that they put the interests of their clients ahead of concerns about being "ethical" to the public's standard.

I think their answer to that might be that the system has a number of biases that tilt the levers of justice away from their favor (as well as general dysfunction), and if they don't defend themselves aggressively it will not be possible to continue as a viable business (which I find compelling--they weren't especially profitable to begin with).

[crazy canuck]

I used to do quite a bit of work for an insurance services company (they adjusted claims), and obviously they got sued all the time. Their general counsel explained their policy to me--they would work with the client to resolve disputes to prevent litigation, but once a case was filed, they would aggressively defend themselves. This was especially the case if the plaintiff's attorney was new to suing them. The point was to make clear that they were not an easy mark to the plaintiff's bar and deter future lawsuits. I would guess that could look like what Berkut is describing in practice.

But that is quite different than what Berkut has described and actually what you said makes a lot of sense.  The defendant should work to attempt to settle the claim for a reasonable amount.  What is reasonable will of course be the question.  If the Plaintiff isnt prepared to settle for a reasonable amount then of course the defendant should be expected to defend "aggressively".  I wouldnt expect them to defend compliantly .  They are after all, at that point, dealing with an unreasonable Plaintiff.

The situation Berkut described is different.  According to him there is no arguable defence and the Defendant is simply defending in a manner that in most jurisdictions would attract increased damages or special costs awards or both.  Which goes to BB's point that unethical behaviour doesnt really help in the long run.  For every penny the insurance comany may have saved over a number of files with this kind of practice - assuming Berkut's description is accurate - there is a very large club waiting for them.

[Berkut]

The question, of course, is not whether there is an "arguable defense" but what should damages be.

My sister is legally blind, cannot walk without assistance, and of course that means she can never work again in her profession.

The defendant can quite easily, and with a semi-reasonable level of credibility, question those facts. Is she really permanently disabled? Is there a chance for recovery? Lets have our doctor examine her to see if they get the same results as your doctor. Lets have our therapist examine her. What are the qualifications of her doctor? ETc., etc. etc. ad naseum.


Even if she can never work again, how much was her salary? Can she really expect those level of raises for the next 20 years? Was she really going to work that long?

There won't be any penalty for this - these guys know what they are doing and they know what they can and cannot get away with. What they can get away with is to delay this process for several years - my sisters lawyer estimated it would take 3-5 years before they could "force" a rational settlement.

I don't think there is any club waiting for them. This is just part of the process, and using that process for the benefit of their client is what good lawyers do, and that is what they are in fact doing.


It is unethical, and perfectly within the norms of the profession.

[crazy canuck]

The question, of course, is not whether there is an "arguable defense" but what should damages be.

I know you dont think there is a defence in your sister's case and I take what you say to be accurate, which is why I have always said that if what you are saying is accurate the Defence lawyers are acting inappropriately and there are court mechanisms to deal with such behaviour which in turn validates BB's point.

But in general the issue of whether there is an arguable defense is linked to the question of damages.  In the case of medical malpractice there are a number of issues that go beyond the question of what the damages are for the injury.  Two main issues are always whether the doctor met the standard of care required and whether the procedure actually caused the damage in question.

To the extent the Defence has good arguments on those points (and other potential defences) necessarily relates to the amount the Plaintiff should compromise their claim to obtain a settlement.

You say there is no arguable defence at all.  If so, that is a very rare case indeed.

[Rasputin]

As I was reading Berkut's posts, I am reminded of some story where a couple of lawyers knew for 20 years that an innocent man was in prison, but they couldn't reveal it because that would be against their client's interests.  These lawyers did act ethically, though, and they did serve their client's interest. 

more than ethical in most states it would have also been an illegal for the lawyers to disclose what a client said in confidence. The issue is the our system often has rules that themselves are in conflict with each other. At the extremes they create anecdotally bad results but on the whole are believed to accomplish a greater good.

If all clients know that their lawyers take their secrets to the grave then clients are more likely to be fully honest with their lawyers who then have some ability to convince their clients to follow the law or do the right thing in the absence of an applicable guiding legal principle.

In your example, absent the attorney client privilege those two lawyers would have never known who the real killer was in any event.

Knowing your clients secrets can be a burden but it is in fact the cornerstone of our system.

Indeed - the system MUST work like this to work at all.

But that does mean that there are times that lawyers not only CAN do things that are of rather dubious ethics (not to mention just), but that in some cases they MUST do so.

Now, the lawyers have defined "ethics" to mean "doing the things that the system demands that we do (or allows us to do)" when they talk about ethics. But that is not the same as what society in general considers ethical or just. And there are a million examples of attorneys representing their clients engaged in incredibly unethical behavior from the standpoint of anyone outside the world of the client.

Companies arguing that they should not have to pay damages for pollution, or even a lawyer arguing that their client should not have to go to jail for running down some child when their client was drunk off their ass

Hell, that is a an easy counter-factual to Beebs claim:

You are a defense attorney tasked with defending your client from a manslaughter charge for killing a child on a bike while he was allegedly drunk.

Lets craft as onerous a scenario as possible:

This isn't his first DUI charge, or even his 4th. He has had several, including cases in the past where he has seriously injured other, but in those cases he has managed to get off for one reason or another.

The evidence against him is completely overwhelming, except that at some point some trivial procedural error was made, which would invalidate the intoxication test. It is kind of a bullshit invalidation, but you've recognized that you can in fact get the case tossed if you bring it up, all the while being 100% certain that your client was in fact drunk off his ass, and did in fact kill that kids as a result, and what is more, in your judgement it is extremely likely that he will continue to drink and drive in the future.

You can bring this up, and get your client off these charges, and in fact our system demands that you do so - from the narrow definition of legal "ethics" used you are well within your bounds. It is necessary that our system allow guilty men to go free in order to avoid any chance of a innocent man being found guilty.

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.

then stop couching your argument with the term "ethics" which refers to a very specific legal code and replace it with "morality" if you want to discuss whether legal ethics mandates a morally just result

[Berkut]

The fact that lawyers use the term "ethics" to mean a "very specific legal code" but then use it generally where people take it to mean something rather different is pretty much my point.

In the normal usage of the term to mean some kind of formal system of moral behavior, it is not at all the case that serving your clients interests is always best done in an ethical manner. To the extent that it is true in the more narrow sense you are using, it is a tautology.

In either case, the idea is in fact the "useful fiction" I pointed out.

[Berkut]

The question, of course, is not whether there is an "arguable defense" but what should damages be.

I know you dont think there is a defence in your sister's case and I take what you say to be accurate, which is why I have always said that if what you are saying is accurate the Defence lawyers are acting inappropriately and there are court mechanisms to deal with such behaviour which in turn validates BB's point.

But in general the issue of whether there is an arguable defense is linked to the question of damages.  In the case of medical malpractice there are a number of issues that go beyond the question of what the damages are for the injury.  Two main issues are always whether the doctor met the standard of care required and whether the procedure actually caused the damage in question.

To the extent the Defence has good arguments on those points (and other potential defences) necessarily relates to the amount the Plaintiff should compromise their claim to obtain a settlement.

You say there is no arguable defence at all.  If so, that is a very rare case indeed.

Shrug. I cannot comment on the legal nitty gritty, just going by what my sisters lawyer stated was happening (and what would happen even before it got started). She certainly did not make it sound like this was unexpected or unusual - but she did make it clear it was kind of a douchebag move, since the goal is simply to try to force a settlement at a lower number than what is warranted by making the person who is now incapable of work wait and wait and wait.

Perhaps her lawyer was lying to her about this, in which case HER lawyer is not being ethical...

[crazy canuck]

I think you miss my point Berk, her lawyers dont have to be incompetant or lying for what I said to be true.  It may truly be the rare case where there is no viable defence.  It does happen from time to time.  My point is that other than those rare circumstances the degree to which the Plaintiff ought to compromise their claim in recognition of legal risk of the defence succeeding at trial is a factor to take into consideration when attempting to determine what a reasonable settlement might be.

[Berkut]

I think I understand your point.

I am not sure it really addresses the core issue, but I understand where you are coming from.

I just don't think this is all that unusual, where lawyers are using the process of the legal system as a tool in their bag of tricks to help their client. You hear about it, at least, all the time. "We will bury you under depositions!" etc, etc.

But it is just a singular example. I can (and have) come up with many others where it is clearly in the clients best interest for their lawyer to act in an "unethical" manner. The idea that our system is so perfect and foolproof that that is not the case is naive to the extreme. It is not.

[alfred russel]

But that is quite different than what Berkut has described and actually what you said makes a lot of sense. 

I'm reading between the lines quite a bit in Berkut's story, but I'm not sure we aren't getting the flipside filtered through a lawyer likely giving a standard explanation for parties that are often unsophisticated.

Assume the damages are assessed as likely to warrant $50k - $80k in judgment. There are of course random risks in going to a jury--the defense could unexpectedly prevail, or a larger judgment could be awarded.

The defense could make a hard offer of $40k. It is lowball, but probably not on its face outrageous. A few factors may make the company prone to do this: the company has enough litigation ongoing that it all evens out for them. Those random risks will even out for them long term. That is not the case for the plaintiff, who is risk averse, and may need the money asap. Also, a contingency fee based attorney may look at this as: I can get a percentage of $40k doing very little work, or absolutely bust my ass and probably get just a bit more, with a risk of getting nothing.

[crazy canuck]

But that is quite different than what Berkut has described and actually what you said makes a lot of sense. 

I'm reading between the lines quite a bit in Berkut's story, but I'm not sure we aren't getting the flipside filtered through a lawyer likely giving a standard explanation for parties that are often unsophisticated.

Assume the damages are assessed as likely to warrant $50k - $80k in judgment. There are of course random risks in going to a jury--the defense could unexpectedly prevail, or a larger judgment could be awarded.

The defense could make a hard offer of $40k. It is lowball, but probably not on its face outrageous. A few factors may make the company prone to do this: the company has enough litigation ongoing that it all evens out for them. Those random risks will even out for them long term. That is not the case for the plaintiff, who is risk averse, and may need the money asap. Also, a contingency fee based attorney may look at this as: I can get a percentage of $40k doing very little work, or absolutely bust my ass and probably get just a bit more, with a risk of getting nothing.

Yeah, I agree.  As I said, the question of what a reasonable settlement might be is the real question and it is affected by a large number of factors.  Personally if I am acting for the Plaintiff I just try to get to trial asap and cut through all that BS of lowballing.  It gets the attention of the Defendant rather quickly to make a reasonable offer.  As Defence counsel I make what I think is a good offer based on all the legal risks in the case and if the Plaintiff thinks they can get more then we go to trial.

I think that is what good counsel do as it reduces cost for clients and it lets people in my little corner of the legal community know that I will do what I say and say what I will do.  ie reputation is all - as I think PLJ commented on as well.

IMO that is the way the system should work.  I also agree completely with what PLJ said about the system being imperfect.  There is no certainty that x act is worth y to a Plaintiff.  We struggle through as best we can.

[Capetan Mihali]

In the first place, lawyers are the agents of different individual, corporate, and state entities who engage in a form of representation within a symbolic sphere.  The model of lawyer as adviser/advocate is basically premised on this idea of a principal-agent relationship between the client and his lawyer.  I think this model in some form is what people expect practically from legal services, as well as its professional aspiration.

So the professional ethics try to come up with rules that delineate the way this agent should or shouldn't serve his principal's interest.  What is produced is often difficult to apply to real situations; at trainings, I've watched an actual State Bar Ethics Committee Chair say about his own hypos "I don't know what the answer is here." 

But even if an ideal praxis of professional ethics were achieved, it could never magically separate the question of the lawyer's ethical concerns from either the entities he serves (clients) or the symbolic sphere in which he acts (The Law).  So I don't really accept the idea that just by being a professionally ethical lawyer, you're being capital-E "ethical." 

You have to commit yourself to a number of different positions, at least personally, before you can actually approach the topic of ethics: what being ethical even means; whether you care to be ethical; whether you see a conflict between your personal ethical beliefs and those of other people or the code of professional ethics, and in which way you'll resolve this; whether your client's interest is an ethical one; whether you think you can serve some other ethical end by advocating for an unethical cause; whether you think it's ethical to participate as a lawyer in the legal system as it actually functions. 

And every one of these positions is likely to be nuanced and complex, since it comes from the complex set of factors that set the apparatus of the law into motion in the first place -- the political economy and the whole symbolic structure that rides with it.

But I don't think that makes it impossible to address the fundamental question Berkut raises.  A lot of these positions are undertaken tacitly, unconsciously, or on the basis of feeling rather than reasoned explication.  I think you can arrive for yourself at the point where you can even answer the question.

I know, for instance, that my answer to Berkut's hypo about the drunk driver, since it's the scenario I'm closest to, is that I would have no ethical problem doing the act contemplated in the hypo (setting aside the inevitable gripe that "that's really not a remotely plausible situation, since even if they couldn't prove his intoxication by chemical means they'd still have all the testimony from the cops who arrested him and any other witnesses about whether he appeared impaired, and even without any evidence of impairment [which if proved would likely be murder rather than manslaughter] they'd still have all the evidence of his grossly negligent operation of the car which is enough for manslaughter, etc.").

But to give you a good account of why I feel it's ethical, I would have to explain my positions on a lot of the different issues/questions/values that the question implicates.  What do I think about the ethics of what he's seeking to do [avoid or mitigate punishment from the state]?  What about the ethics of helping him do that in this way?  What do I think about the ethics of evidentiary rules themselves [excluding this evidence but including that evidence]?  What about the ethics of following those evidentiary rules?

I also think it's legitimate to decide not to trouble with interrogating yourself as the ultimate ethics of your actions.  But relying on a pat answer doesn't accomplish it.

It's important to note that the ethical inquiry is not essentially limited to lawyers at all, but ultimately implicates everyone. The legal system, by setting up such stark contrasts (of parties, interests, procedure, etc.), lends itself more blatantly to provoking these inquiries.  But many of the same questions could (and perhaps should) be asked about the things that professors or accountants or programmers in the course of their work.

[Savonarola]

It's important to note that the ethical inquiry is not essentially limited to lawyers at all, but ultimately implicates everyone. The legal system, by setting up such stark contrasts (of parties, interests, procedure, etc.), lends itself more blatantly to provoking these inquiries.  But many of the same questions could (and perhaps should) be asked about the things that professors or accountants or programmers in the course of their work.

I think all professions have a code of ethics.  Engineering does, and both the Fundamentals of Engineering Exam and Professional Engineering Exam have an ethics section.  Accounting must have something similar.  Since programming and professorships don't have professional licensure they may not (or not something universal.)