THE NEOPHYTE LAWYER
DAY 105: BAD LAWYERING (AND BAD PARENTING)
Would you sue your parents for not including money in your birthday card? Or not sending you care packages when you were in college? Or not taking you to a car show? Or calling you at midnight and telling you it was time to come home from celebrating homecoming? Would you, as an attorney, represent someone who did?
If your answer to any of these questions was “yes,” then you must be positively outraged at the miscarriage of justice handed down by the Illinois Court of Appeals last week. As reported in various places, including the Chicago Tribune and ABC News, two adult children, now 23 and 20, sued their mother for, apparently, being a parent. The children sought over $50,000 for “emotional distress.
What attorney would agree to take on such a case, you ask? Funny story, that. The children were represented by…their father (surprisingly enough, the parents are divorced). According to the story, he only agreed to take the case “after much research” and that he “tried to dissuade his children from bringing the case.”
The trial judge did not impose sanctions against the father (or the children). And the mother is still stuck paying her legal fees, while the father represented the children for free.
Neophyte Lawyer’s Thoughts
Many of the comments to these articles basically argue that the children were spoiled brats, and the courts were right to toss their case. I wholeheartedly agree with the latter statement; this case was a waste of time, effort and money (I don’t know the plaintiffs, so I will reserve judgment on the whole “spoiled brat” issue).
But what about the father? What was he thinking? Let’s accept for the purpose of argument that he did in fact attempt to dissuade his children from pursuing the case. He certainly didn’t try hard enough. And when he failed to dissuade them, he probably should have withdrawn from the case.
The Illinois Rules of Professional Conduct allow a lawyer to withdraw from representation under certain circumstances. Rule 1.16 deals with withdrawing or terminating representation of a client, and states, in pertinent part:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement….
Comment  to this rule states:
A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.
Rule 3.1 covers meritorious claims and contentions. It states:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact 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.
Comment  to this rule states, in part, that the lawyer “has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.” Comment  discusses frivolous claims, stating in pertinent part, that an action is frivolous, “if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification or reversal of existing law.”
These rules give the father two ways out of this case. First, if the children insisted in pursuing the case over the father’s objections, he could withdraw under Rule 1.16(b)(4). Second, if the father could not make a good-faith argument to support the argument that sending inappropriate birthday cards (read: “without cash included”) amounted to “outrageous” conduct, he would be required to withdraw under Rule 1.16(a)(1), as the case would be frivolous as defined in Rule 3.1.
Of course, if the mother’s attorney is correct, then her ex-husband’s motives are not so pure. According to this theory, the father was seeking the “ultimate revenge” of having the children accuse their mother of “being an inadequate mother.” In other words, he’s being a jerk.
This whole episode reminds me of an article by Randall Ryder posted on the Lawyerist.com web site last month, entitled “What Have You Done to Improve Lawyers Public Image?” Although Mr. Ryder doesn’t mention this specifically, I’m pretty sure he’d agree that one way to improve the public perception of the profession would be to avoid using your children (no matter how old they are) as pawns in disputes with your ex-spouse (if that’s what is going on here).
And don’t file frivolous law suits, even if your kids beg you to. Sometimes being a good parent means that you have to say “No.”