14 July 2009

Your Lawyer's Mistakes Are Your Fault

Lawyers live in perpetual mortal fear of missing deadlines and losing a case as a result, no matter how effectively their precautions make this unlikely to happen. This happens, but it happens much less often than one might expect from a plain reading of the rules of civil procedure. Colorado reached a less outcome determinative result in an exceptional but less extreme case where the client was possibly more at fault, in a recent case that I blogged here, for example.

An example of the utterly dismal lawyering which is sufficient to lose a case for a client is set forth in a recent United States Court of Appeals for the 7th Circuit case in which attorney James Hinterlong misses deadline, after deadline, after deadline over more than a year, as he proves utterly unable to follow the court's rules. The fact that Hinterlong is the one who filed the suit in the first place on behalf of his client makes his inattention to the case particularly worrisome. Hinterlong's client hires a new lawyer, but the new lawyer's efforts prove to be too little, too late. As a result, the client loses to the tun of $582,000 in contract case that it filed in the first place, and the client then sues Hinterlong, who has no malpractice insurance, something that is not unusual because malpractice insurance is rarely required by law. One suspects that Hinterlong will see his license to practice law suspended or be disbarred before too long.

The moral of story, from the appellate court's perspective, which opens with the sentence: "This case is an example of how the sins of a lawyer can be visited upon the client," is the general rule that clients are held responsible for their lawyer's actions, even if their lawyer has manifestly screwed up in a way that is not the client's fault, as was the case here. The notion is at the core of an adversary system of justice.

This doctrine has particular force in civil litigation where there is no constitutional or statutory right to publicly financed counsel, and a client chooses his own lawyer. In those cases, a suit for malpractice, rather than relief in the underlying case is the normative remedy, and if a malpractice judgment is unlikely to be collectable, that is just the client's bad luck. A fund financed by lawyers sometimes makes payments to clients if lawyers steal funds, but almost never does so if lawyers simply malpractice.

Where third party or public interests are at stake, for example, in a custody case or a suit to determine a statute's constitutionality, or where a malpractice suit can never adequately substitute for the harm associated with a loss on the merits and there is a right to adequate counsel, for example, in serious criminal cases, there are real reasons to question the appropriateness of this rule. But, in a contract suit between two corporations that is strictly over money, like the one in the 7th Circuit case, the argument for holding clients responsible for their lawyer's conduct is quite strong. After all, corporations can only act through their agents in any case.

Similarly, while there are cases where it seems harsh to uphold the finality of judgments which are not timely appealed after being entered, a factor also involved in this case, this is not one of them.

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