Yes, you have a duty to represent your client zealously. But don’t let your zeal for your client’s case trump your duty to prosecute only meritorious cases. It won’t fly to say, “My client made me do it.” Your duty to the judicial process transcends any client’s agenda. Check out a recent smackdown from a California appellate court.
The duty to represent your clients zealously is tempered by the requirement that any representation be within the bounds of law (which includes disciplinary rules and enforceable professional obligations). See Hawk v Superior Court (1974) 42 CA3d 108, 126. See also Bus & P C §6068(a), (c)–(d); Cal Rules of Prof Cond 3–700(B)–(C), 5–200.
In a recent decision (PDF), the court of appeal acknowledged that the client was likely the prime mover behind the prosecution of the lawsuit, but took the opportunity to remind all attorneys of their duty to the courts and the judicial process. It admonished that “[t]he type of uncivil behavior and specious tactics demonstrated by filing this case represents conduct that brings disrepute to the entire legal profession and amounts to toying with the courts.” Finton Constr. Inc. v Bidna & Keys (June __, 2015, G050093) 2015 Cal App Lexis 574.
Indeed, despite the parties settling the case, the Finton court nonetheless published its opinion “as an example to the legal community of the kind of behavior the bench and the bar together must continually strive to eradicate.”
No attorney wants to be the subject of a scathing opinion like that!
So, if you have a client pushing an action you know shouldn’t be prosecuted, bow out. In fact, you must withdraw from representing a client if you know or should know that your client is (Cal Rules of Prof Cond 3–700(B)):
- Bringing a legal action, conducting a defense, asserting a position in litigation, or otherwise taking steps solely to harass or maliciously injure a person or solely out of spite;
- Taking or prosecuting an appeal merely for delay or for any other reason not in good faith.
Even if mandatory withdrawal under Rule 3–700(B) doesn’t apply, you can still choose to withdraw under Cal Rules of Prof Cond 3–700(C) if your client:
- Insists on “presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law”;
- Seeks to pursue an illegal course of conduct; or
- Insists that you pursue an illegal course of conduct or prohibited conduct under the California Rules of Professional Conduct or the State Bar Act.
Withdrawal is also permissible under Cal Rules of Prof Cond 3–700(B)–(C) if the lawyer’s continued employment is likely to result in a violation of the California Rules of Professional Conduct or the State Bar Act.
Not withdrawing when you should do so could get you into more trouble than just being chastised by a court—under the revived and amended CCP §128.5, a trial court may order you to pay the reasonable expenses, including attorney fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
For more on attorney duties and misconduct, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 16. On attorney fees awarded as sanctions, check out CEB’s California Attorney Fee Awards, chap 6.
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