f/k/a . . . the archives

July 23, 2008

making frivolous lawyers pay

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 4:13 pm

It’s been three years since I posted this quote — in a piece called “counsellor or mercenary?” — from Sol Linowitz‘s book The Betrayed Profession (Scribners, 1999; the passage is also found in the June 1999 issue of DCBA Brief):

SolLinowitz “Elihu Root . . . put the matter more simply: ‘About half the practice of a decent lawyer,’ he once said, ‘consists in telling would-be clients that they are damned fools and should stop.’

“Today there are too few lawyers who see it as part of their function to tell clients (especially new clients) that they are damned fools and should stop: Any such statement would interfere with the marketing program. The public pays, because the rule of law is diminished.“

Later in the same chapter, titled “Living the Law,” Linowitz notes:

“The doctrine that professionalism means respect for the client’s ‘autonomy’ and commands doing whatever the client wants is, after all, most convenient. Nobody ever lost a client by doing exactly what the fellow wanted, but much lucrative legal work has been sacrificed by lawyers who regretfully told prospective clients that this was something they were not willing to do.”

 

Sol’s words and quotations came to mind today, when I saw the Law.com article “Law Firms Held Liable for Fees in ‘Tissue of Lies’ Patent Suit” (New York Law Journal, July 23, 2008). Anthony Lin’s piece begins:

NoYabutsSN “A federal judge has ordered a patent holder and his lawyers to pay attorney fees for bringing an infringement suit based on ‘nothing more than a tissue of lies’.

Irving Bauer had sued Romag Fasteners Inc., a manufacturer of magnetic snap closures for handbags, for infringing a 1996 patent on a new type of closure he claimed to have invented.

Last week, in Advanced Magnetic Closures Inc. v. Rome Fastener Sales Corp., 98 Civ. 7766, Judge Paul A. Crotty of the Southern District of New York invalidated Irving Bauer’s patent (for magnetic snap closures for handbags), finding that Bauer’s testimony about his inventorship “bore clear indicia of fabrication,” and adding that he was “convinced beyond a shadow of a doubt” that Bauer was no inventor.

Here’s the part of the article that most interested me:

“The judge held New York law firm Abelman, Frayne & Schwab, which initially represented Bauer in his suit against Romag, jointly and severally liable for Romag’s attorney fees after Feb. 11, 2006. That was the earliest date, the judge said, Abelman Frayne should have realized expert testimony the firm planned to use to support Bauer’s claim had been contradicted by testing.

‘By persisting with this claim to trial, Abelman counsel played a central role in so unreasonably and unnecessarily multiplying the proceedings so as to give rise to bad faith litigation,’ the judge said.

Bauer replaced the Abelman firm in August 2007 with David Jaroslawicz of Jaroslawicz & Jaros. The judge held Mr. Jaroslawicz jointly and severally liable for Romag’s costs after Oct. 5, 2007, finding he also should have been aware of the deficiencies of Bauer’s claims.”

Romag’s lawyer, Norman Zivin of Cooper & Dunham in New York, said he had previously requested around $1.2 million in attorney fees, though he said the judge would likely modify that amount.

just say no Judge Crotty’s willingness to hold the lawyers responsible for their opponents’ fees is a welcome change from my last direct experience with frivolousness petitions in 1990 (see my war story for some of the facts). At that time, I specifically asked that opposing counsel be liable for fees after bringing a frivolous claim against my client (which was contrary to the existing police vehicle accident report and their own client’s guilty plea to vehicular manslaughter), and then continuing to maintain the claim for four years, despite expert reports and legal memoranda making it clear they had no valid basis for a claim. [Remember, "frivolous" does not simply mean without merit, it means "without a reasonable basis in fact or law." See, e.g., Model Rule 3.1]

At the time, opposing counsel were outraged that I would ask that they be held responsible. The judge granted my motion for fees, saying that commencing the action was “irresponsible and frivolous,” and the failure to discontinue it compounded their bad faith. Nonetheless, he directed that the client corporation and individual pay our fees and costs, without even mentioning my request concerning their lawyers.

Root and Linowitz are clearly right: It is the lawyer’s job to say no when a client wants to press a frivolous claim, or when the lawyer is tempted sua sponte to make a baseless claim in order to curry favor with a client. The mere fact that saying no might lose you a client, or anger one, is not a good enough reason to go along. Lawyers are gatekeepers, with important responsibilities to the courts and the public. Seeing that Bauer’s lawyers might have to pay $1 million in fees should have a major deterrent effect on the rest of the Bar. It should.

The sole poem that I posted three years ago today gives me another idea for deterring cases like Bauer-Romaq:

in the misty day
no window can be seen…
a prison

 

……. by Kobayashi ISSA, translated by D.G. Lanoue

This one from one year ago today suggests another party we might want to intervene when confronted with such a “tissue of lies:”

thunder . . . erasingS
little leaguers chatter
silenced

……………………. by Randy BrooksBaseball Haiku (2007)

These don’t seem to be related in law or fact, but are worth reprising from July 23, 2007:

mountain butterfly
from her boulder
to mine

moonrise . . .
cattle single file through
the narrow pasture gate

early morning cool
men in hard hats gather
on the last patch of grass

tongue out
the boy guides a new airplane
round and round

……………………. by Randy Brooks
“early morning cool” – the loose thread: rma 2001; Modern Haiku XXXII:1;
“moonrise . . .” – the loose thread: rma 2001; tundra 2
“mountain butterfly” – a glimpse of red: RMA 2000; Modern Haiku XXXI:2

2 Comments

  1. Your article and comments are correctly aimed at lawyers who take on clients for profit as lawyers. Lawyers are paid fees win or lose and as such are brokers in an efficient market of sorts tempered by the threat of over-reaching by bringing frivolous suits.

    The story is different in this case, where the lawyers were central to the business strategy of the plaintiff for 20 years. They guided the plaintiff and his other companies in a plan to control an industry. The law firm essentially ran the business and used the patent rights to stifle competition and scare customers into using their product. Dozens of suits and threats were issued by them for over 20 years.

    The patent infringement case brought against us was a business strategy aimed at scaring away our customers. They thought that my new invention and young company could not find the financial strength to fight in Court. It is very expensive to fight a patent case and the older and well established plaintiff had the upper hand in this regard. Had it not been for my belief in truth and justice, and my faith that the US Court system would ultimate find the truth I would not have risked my savings to fight to the finish over 11 years. I am vindicated in my trust of our system, now that Judge Crotty got it completely right.

    It is unfortunate that our hard working and honest company can only be compensated for expenses for attorneys. It is unfair that a plaintiff has no other risk than attorney fees in bringing a suit… perhaps the answer to your frivoloous suit proposition is to raise the stakes for a plaintiff….and maybe their attorneys as well.

    -Howard Reiter
    President
    Romag Fasteners, Inc.

    Comment by Howard reiter — July 23, 2008 @ 9:59 pm

  2. Thank you for taking the time to present your perspective on this case. It seemed to me (only knowing what I read in the NYJL article) that these lawyers were far more involved than a “typically frivolous” lawyer. I wish you well and hope there is a way to be made whole for any additional harm the Bauer actions caused your company.

    Comment by David Giacalone — July 23, 2008 @ 10:10 pm

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