Posted by
NOTLEGALROADKILLYET on Tuesday, December 05, 2006 8:47:44 PM
I found another example of a judge with the courage to tell a lawyer that he had misbehaved. Once again, it was a Federal judge. Federal Judges are immune from retaliation by the Bar. Such a thing would never happen here in Colorado. Quoting from the New York Times:
In a decision issued late Thursday, Judge Melinda Harmon of Federal District Court issued a summary judgment dismissing the case against Alliance, and also invoked a rule requiring the payment of Alliance’s legal fees by the plaintiff’s lawyer, on the ground that the case was pursued after it became clear it was without merit. The decision appears to be the first in which a law firm, and not the plaintiff, has been ordered to pay under that section of the securities law.
Unfortunately, this Federal Judge did not also refer the law firm or lawyer for legal ethics discipline. While this is a Texas case, I quote from the Colorado ethics rules:
Rule 3.1 Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
(Note: Colorado's Rules of Professional Conduct closely follow the ABA model, and I assume for the purposes of this discussion that Texas does also.)
When this case was brought, it might not have been frivolous, or at least, it might not have been obvious that it was frivolous. However, a deposition made it clear to both sides (and the judge) that the lawsuit was without merit, mean that to continue to press the suit appears to have been a violation of this rule.
Care to bet that no attorney or judge makes an ethics complaint? The lawyer clearly isn't worried. If you read the article all the way through, you will discover that he doesn't even think that he will be paying the other side's attorney's fees.
In a telephone interview, Mr. Lerach said he would appeal the ruling. “I think we are a long way from paying anybody’s legal fees,” he said. “At the end of the day, I’ll be very surprised if we have to pay.”
The reason this kind of thing happens is that the legal system controls its own ethics rule making and enforcement. If that were to change, in every state, this kind of apparent rule breaking would come to a quick end.