September 8, 2003
New York Top Court Asked to Review Tobacco Fee Awards
Can Cyber Shame Tame Frivolous Lawsuits?
I encourage as many people as possible to build links to this page. This page could become the top search result for that law firm and those lawyers. This would be an effective consumer advisory for anyone considering hiring Hogan & Hartson LLP, Dori Ann Hanswirth, Tracey A. Tiska or Katherine M. Bolger.
Indeed, H&H ranked 24th on the American Lawyer list, up from 76 in 2001.
Furthermore, many big companies and other fatcat clients want the kind of counsel who will be their hired gun for settling scores. On the other end of the client spectrum, if Joe Client is looking to hire your average Jane Lawyer, he will find little if anything of use through Google.
Yoss is right that we want the managing partner to make clear that his or her firm will not assist in bringing meritless claims. But, I believe the very best way to stop frivolous lawsuits is to make determined and consistent use of sanctions against such meritless actions — with serious financial penalties and disciplinary punishment for the most egregious offenses or recidivism.
Whether using Rule 11 in federal matters, or state judicial or ethics rules against meritless actions, the message needs to be clear that frivolous claims will not be tolerated. Rule 3.1 of the Model Rules of Professional Conduct sets out the standard:
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.
Lawyers need to know that bringing frivolous suits will put their license in jeopardy. And, since the Lawyers Club still deems it to be unsavory to bring frivolousness claims, we need to have judges take the lead — both by raising the issue using sua sponte powers [like those granted in Rule 11 (c)(1)(B)], and by referring such matters to state grievance boards.
We also need to make sure that the public knows that frivolousness sanctions exist — without, of course, suggesting that every losing lawsuit was frivolous. Such knowledge should help deter many meritless lawsuits and motivate the “victorious victim” to press his or her attorney into seeking sanctions (especially reimbursement for the resulting fees), and reporting the conduct of opposing counsel to the appropriate grievance committee, or explaining why doing so is not proper. (We definitely do not want an avalanche of frivolous frivolousness claims!)
I’m not sure why Ernie doesn’t want sanctions against Fox’s lawyers for the Franken suit. This kind of high-profile case could be a great tool to educate the public, only a small part of which is blogocentric. Strong judicial sanction, and scrutiny by bar counsel, would send a far more effective message to Hogan & Hartson than linking to Yoss’ posting, or Ernie’s, or even this one.