Article Written For New Jersey Lawyer Newspaper- 2008
Loyalty, Betrayal, and the Law Business
I own a big house on 15 acres, all glass in the back, looking over a tranquil meadow. It’s real nice. I’m having 6 guys carve a running path through the woods but I don’t like to run. My next-door neighbors are famous, beautiful models. Really. I’ve been looking for a pied de terre in the City but I have to stop for now since I am going to Croatia for 4 weeks this Summer. Yeah, I know it’s expensive there, $12 for a cup of coffee and all, but that doesn’t concern me. I don’t care. It seems I’m not a smart investor. I’m a reverse barometer of sorts -- as soon as I buy it, down it plummets. I’ve lost a lot of money but, what the heck; it’s fun for me and I have lots more money.
Want to know how I got so stinking rich?
It’s from suing lawyers. And most of what I sue them for is Conflict of Interest. For doing things that are intentional and absolutely prohibited. I never lose these cases but I have to tell you -- it’s not me. Nobody could lose them. The behavior is that gross. My regular adversaries know this and they, after a bunch of posturing and tough talk, just try to negotiate me down a little, then pay me what I want, with a confidentiality clause. And at these prices, I positively will keep that secret.
Last month, an adversary who doesn’t handle too many of these made me actually start one; he’s mostly a criminal lawyer and, I guess, he thought these cases were no harder to win than a murder case with DNA against you. After a simple review of the file with the defendant on the stand for 3 or 4 hours, and with the jurors shaking their heads angrily, the judge called a halt and asked me how much we wanted. I was having fun so I told him $50,000 more than our highest possible number and next thing I knew the case was over.
I had made an awful opening statement; I ordered it and read it and it stinks. My client never spoke a word during the 1 day of trial. Still, in the parking lot, the jurors came over and hugged him. They beeped their horns at me and gave me that thumbs up sign and smiled brightly, as if I had thrown the touchdown pass that would live forever in their memories. I can’t imagine they understood or cared much about the obscure point of divorce law upon which the underlying case turned. I’m not sure I did.
But, the lawyer’s conflict was so obvious and, to the jury, so infuriating that they felt as if they knew my client and loved him. He was a victim and I was his rescuer. And they even thought I was a real killer, which is nice.
I’ve got another big one coming up next month and it’s going to go the same way and the one after that and then again. It’s turtles and more turtles, all the way to the bottom.
The typical conflict cases I see fall into two categories:
- Lawyer’s who have made mistakes but who do not confess, or even advise, perhaps even lie to their client about the mistake, in violation of R.P.C 1.7. This is a normal cover up, and;
- Lawyers secretly favoring one client over another to benefit the lawyer’s interest.
Nearly every lawyer who has made a mistake ends up doing what I have described in #1 above, big law firms and small. I have handled hundreds of these cases and have been consulted on thousands more, (1-2 per day!) and I can tell you that I have seen mea culpa letters 3 times, in 16 years of doing mostly this. And one of the three added, meanly, “though I did wrong, your case was a loser anyway. So, I didn’t lose it.”
As to number 2, I can’t prove it but here is my strong impression of who is doing this deliberately bad stuff:
It’s the BIG LAW FIRMS
It’s the BIG LAW FIRMS who will in the morning represent an unsophisticated seller, perhaps a group of nuns, and have, later that afternoon, a whole other closing, undisclosed, with their other client who makes most of the money -- but wouldn’t have if the lawyers had told the nuns everything. It’s the BIG LAW FIRMS who will represent the medical group but actually be plotting with one of the doctors to take it over, stick the older doctor with a big judgment, to hasten things. It’s the BIG LAW FIRMS who will ditch the individual in the middle of the case if the institution being sued requests it because, of course, representing the institution is recurring and more profitable. (I recently saw a retainer agreement from a BIG LAW FIRM and it said that the firm retained the right to fire the individual client immediately if the bank they were suing decided to become a client of the firm.) I’ve got a new case in which the BIG LAW FIRM knifed the sole owner of the company who came to hire them in favor of taking the company into bankruptcy using the information provided by the owner to do so. And to show there is no looking back, the lawyer then told the press that the owner is a real loser, a liar, not to be trusted.
I didn’t make this stuff up. These are real cases.
It’s obvious why the big firms are doing this. The unending pressure to bring in revenues, judging from what I read, is intense, a religious fervor, nearly a jihad. But 2100 hours each year, billed and collected, that is not enough. If he wants to succeed, he has to bring in more. So here is the calculus: The lawyer gets the credit he must have -- he eats what he kills and all that macho stuff -- and so what if years later there might be a complaint, years after that a lawsuit and years after that, perhaps, some obligation to pay or a judgment, and then, the payoff by the insurance company, not the lawyer who did the dirty deed. In my experience, these big firms defend to the last possible moment. I once asked a senior partner at a big firm if he was going to discipline the lawyer who had created the conflict that caused me to sue his firm, gotten them much bad press and cost them what seemed like a lot of money to me. He just wrinkled his nose, shrugged, as if he hadn’t thought of that.
Our tort system is pretty fantastic. The delivery room is safer, the factory floor is safer, cars are safer. Much of this came about because of lawsuits; it was just too expensive to resist doing better, doing the right thing.
But the tort system is not going to fix this one. The big firms see this as a business issue and viewed that way, there is not much reason to change, not much to fear. What I get when I sue them, well, it’s a lot of money to me but not to them. Representing a big corporation for 10 years is worth a bit of rule bending, of conflict. A firm can lose a legal malpractice claim or two for that.
The issue is intent, more than it is conflict. A lawyer or law firm that intentionally, that knowingly, does what is best for the lawyer and firm, harming its client, that deserves serious attention, more serious than a legal malpractice case can bring.
The question is what to do with a lawyer or law firm that intentionally violates the conflicts rules for his or its own benefit. If that is proven, shouldn’t something more be done than having to settle with me? Do we want to take away the licenses, at least for a while, of those lawyers who deliberately look out for themselves, despite all the warnings, the cases, the holy oaths that say that they cannot? And what to do about the BIG LAW FIRMS that are good with this? What about firing a shot across that bow? Or even into the engine room?
I started with a general practice. Clients who sometimes had met me that day would give me $500,000 in a check made out to me, figuring I would, of course, use it for their house closing and not steal it. Potential clients came in and told me very secret stuff that they’d never tell their best friend. They had stolen money, were cheating on their spouses, were actually gay despite living a conventional heterosexual life. They weren’t telling me this stuff because I was such a great lawyer; I hardly knew anything. In fact, I charged $25 for a consultation and when they were done sobbing and confessing, they’d take out their checkbooks and say, “What is your name, again?”
My point is that they trusted me with all their money and with these intimate, powerful secrets merely because I was a lawyer; they had to trust one and they did. If I had betrayed any of them to suit my own interests, then I did not deserve that trust, should not be a lawyer or anything like that. Dog trainer, physicist, school teacher, anything that did not force me to choose too often between my needs and theirs, all fine. But not lawyer.
The Office of Attorney Ethics does not do much here. It does not view this as serious, certainly not like stealing trust funds. And if there is a legal malpractice case the OAE invariably awaits the outcome of the case so as not to harm the lawyer sued. That isn’t any help to the world or even to the profession. Lawyers who intentionally violate the conflict of interest rules and the managing partners who allow that, they should both be punished in a severe and public way. If there is hope for rehabilitation, they should be sent for re-training and then, if they can’t resist putting themselves first, stripped of their buttons and drummed out of the Corp forever.
We don’t need them and, judging from what I hear, they are doing a lot of harm.