Ethics Month Bonus Scenario B

Save it for now or later?

Michael Taylor was representing a client referred to one of his firm’s senior partners by another lawyer in the area who had a conflict. It was a general district court case in which the client was suing a pro se defendant for collection of a note. The trial was going well with the pro se defendant mostly agreeing that he owed the money. Michael had introduced all of the relevant evidence and in his opinion, he had clearly proved the full amount along with attorney fees was due and owing. During court, the defendant kept saying that he thought he could pay the amount if given more time. After the evidence was closed, the judge, seemingly out of nowhere, asked Michael if he wanted to take a nonsuit and gave him time to talk with his client. The client was confused because it seemed clear that he was entitled to the judgment, but deferred to Michael’s judgment. Not wanting to irritate the judge, and knowing that a nonsuit was a dismissal without prejudice and could be filed again, Michael decided to take the nonsuit. The referring lawyer, who had been observing the trial to see how Michael was handling the case, called the senior partner to express his displeasure that Michael had not pushed for judgment, given that even if they lost they could appeal to the Circuit Court.

—Based upon the program "Professionalism and Clients: Zealous Representation, Reasonably Diligent or Overly Meek?" by the I'Anson Hoffman American Inn of Court in Norfolk/Williamsburg, VA

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Judge Barbara M.G. Lynn, Patrick E. Higginbotham  and Honorable Barbara M.G. Lynn American Inns of Court, and Michael P. Lynn, Esq., Patrick E. Higginbotham American Inn of Court, Dallas, TX

The obligation of zealous advocacy requires a lawyer to respectfully challenge the court when necessary and to appeal when warranted. The dismissal without prejudice has a harmful impact of delay, and Michael should have made sure the client understood the options. The senior partner should support Michael, offer to refile the case promptly and to pay the filing fee, and give Michael more training and supervision.

The Ethics Gurus—Francis G. X. Pileggi, Esq. of Wilmington, DE and John P. Ratnaswamy, Esq. of Chicago, IL

Michael was trying a case on behalf of a client. He did not ask the client about non-suiting, did not have authority to non-suit, and does not appear to have considered how a non-suit would be detrimental to the client. This likely is not a tactical decision reserved to the lawyer, much less one about which the lawyer need not even consult the client. See, e.g., ABA MRPC 1.2(a).

Judge William H. Burgess III, Barney Masterson American Inn of Court, Clearwater, FL

The first consideration is that the judge should always follow the law. The second consideration is that an attorney should not just go along with a judge who is unwilling to follow the law to the detriment of a party’s legitimate interests, even if out of a sense of “fairness” or “equity.” The senior partner should be displeased, under normal circumstances, and should so inform Mr. Taylor. I would advise Mr. Taylor that he should have pressed for judgment while assuring the court that he would be willing to discuss a timetable for payment with the defendant post-judgment.

Stephanie J. Zane, Esq., Thomas S. Forkin Family Law American Inn of Court, Cherry Hill/Camden County, NJ

Michael should have asked for a recess to allow for discussions with the client before taking the dismissal. The client should have been consulted about options and the various outcomes explained. The senior partner should not be discussing the matter with the referring attorney as there may be attorney/client privilege issues impacted. The Senior partner should discuss the matter with Michael to gain the full picture of the situation and why the decision was made to take the dismissal.  Michael must be reminded that these are not his judgments to make and that the client ultimately must be given information and they must made a decision based upon the recommendations and advice of counsel. Michael should be reminded that judgment calls are tough but they must be made based upon the totality of the facts and the circumstances.

Donald E. Campbell, J.D., Ph.D., Associate Professor of Law, Mississippi College School of Law, Jackson, MS

This hypothetical is different than that of "Tennis, anyone?"  In this case, the lawyer is making decisions about the ultimate outcome of the client’s case.  Ordinarily courts have held that decisions that will result in a case being dismissed, the lawyer should consult with the client (Linsk v. Linsk, 70 Cal. Rptr. 544 (1969) has a good discussion of decisions left to the lawyer and those left to the client). The senior partner has an obligation to make sure that associates know about their ethical obligations (Rule 5.1).

Inn member in Pittsburgh, PA

This is another client education/communication issue. Michael didn't give his client enough information so that client could make an informed choice. Maybe the client would have wanted judgment taken so that a payment plan could be worked out. Maybe the client didn't want to go thru this again or pay for the case. The partner should talk to Michael about how to best explain all the options so that the client can choose the best option for himself. 

 Matthew J. Sweeney, III, Esq., Harry Phillips American Inn of Court, Nashville, TN

This scenario, which appears to be situated in Virginia, concerns a court will limited jurisdiction, whose decisions can be appealed for de novo trial, similar to the Tennessee procedure of appeal from general sessions to circuit court.  More than an issue of ethics or even of professionalism, it appears to present an issue of experience and training.  One ethical issue presented, however, relates to competence. Rule 1.1, Rules of Professional Conduct, requires a lawyer to provided competent representation.  Was Mr. Taylor competent to handle this matter?

We don’t know here whether Michael Taylor had tried a case in general district court, whether he understood the de novo appeal rights, or why he thought it best to take a non-suit. It does not state whether Mr. Taylor discussed with the client the options of non-suit or proceeding to verdict, including the appeal rights,  following the judges unexpected comment.  Also, the problem does not explain why the judge suggested the non-suit, might be  irritated if the client did not take a non-suit, or how the irritation might otherwise have  affected the case.  We also don’t know why the case is in general district court; is it a jurisdictional requirement for a small case or a strategic option based on expense of filing and preparation? Is there any adverse consequence to an appeal, procedural, expense, etc.

Assuming that this is Mr. Taylor's first trial in general district court, the assigning partner would have been wise to discuss it with him at an early stage.  In any event, he should have assured himself that Mr. Taylor was competent to handle the matter.  Such a discussion might have included:

  • Mr. Taylor's experience and understanding of general district court practice
  • General facts and merits of the case, including damages
  • Which court to file in and why
  • The unpredictability of judges and trial in general district court (a common occurrence in some lower courts)
  • Ways to remedy adverse  outcomes in that court through a de novo appeal (limiting the actual risk of an adverse outcome)
  • Addressing "what if" scenarios (although it is rather unlikely that this one would have arisen in that discussion)

After the verdict, the senior partner should talk with Mr. Taylor to understand what occurred, verify that sufficient evidence was presented to win the case, try to figure out why the judge made the non-suit comment, and importantly, assure Mr. Taylor  that the world has not ended and that he has not lost his job.  They should discuss who will follow up with the client and what will be said.  They should strategize what to do next, including whether to refile in general district court or at the next level, if allowed.  Assuming all other things are okay, the senior lawyer should assure the client he supports Mr. Taylor and his continued representation in the case and should discuss their plans for proceeding forward.