Something to Consider When Advising Your Clients About Litigation or Appeal

Are you presenting a meritless defense?
Too many attorneys defend cases that have no defense.

Over the years I have been sorely disappointed to learn that many attorneys don’t see a problem with that, and have no clue that it is not permitted. In California, for example, the Rules of Professional Conduct prohibit accepting employment by a client if the objective of such employment is “to present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.” Some cases are not black and white, and that is why ours is an advocacy system, but some are entirely clear and not open to debate. If someone borrows money and does not pay it back pursuant to the terms of the agreement, so long as there is no issue of contract interpretation or other issue, there is no defense. A defendant in that case should not be able to find any attorney to represent him.

But let’s set aside the ethical considerations for a moment, and look at this from a different angle. I would hope that any attorney, whatever the motivation for taking the case, would want to do a good job for the client. Always consider whether a defense could actually put the defendant in a worse position, and advise the client of that possibility. Here are two cases from my practice that illustrate what I am talking about.

The case of the defaming doctor.

In the first case, we brought an action against a doctor who had defamed our client. When the doctor’s contract at a hospital was not renewed, she decided our client was to blame. She took to the Internet and posted false comments about his job performance, in some cases assuming the false identity of a nurse and in others a patient. When we presented irrefutable proof that she had published the anonymous comments, she admitted what she had done. If ever there was a case that should have settled, this was one, but her insurer picked up coverage and for unknown reasons decided to fight the case right through trial, despite our very reasonable settlement demand.

The result was disastrous for the doctor. Continue reading