We hear in the news about trials where the lawyers face sanctions, discipline, fines or charges of unethical behavior for questionable actions in the courtroom or the course of litigation. These controversial acts may include making repetitive, frivolous or meritless arguments of fact or law, especially after the court has already rejected them.
Similarly, a lawyer could make the same motion or file the same appeal repeatedly after having already had it denied. Just because you say or do something over and over does not make it more persuasive. In litigation, these kinds of conduct waste judicial resources, run up attorney’s fees, are burdensome to all involved and may violate court rules, statutes or rules of professional conduct.
Other questionable litigation tactics
Another problematic courtroom behavior is when legal counsel makes arguments or describes evidence in ways that mischaracterize either the facts or the law. It is ethical to argue in good faith for reasonable changes in law. But when arguments become frivolous or are made in bad faith, an attorney approaches a line of misconduct. It is also problematic to call expert witnesses that testify to opinions stretched beyond a credible assessment of the evidence.
(For a current, well-known example, some of these courtroom behaviors are alleged to have occurred in former President Trump’s currently open cases against him. One judge reportedly said the former president’s counsel’s arguments “personify frivolity.”)
But is it legal malpractice?
So, can unprofessional behavior in litigation also be legal malpractice? The answer is sometimes. It can be an extremely complicated analysis.
Certain elements of the malpractice claim may be challenging to prove. Legal malpractice occurs when a lawyer violates their duty of care to the client and that violation causes harm – usually financial – to the client. Was the misconduct in violation of the duty of care to the client? What are the parameters of the lawyer’s duty of care in this context?
If the attorney breached their duty of care, did the violation harm the client? It may be difficult to show how sloppy, repetitive or misleading litigation techniques caused actual client harm. Did the lawyer’s behavior anger the judge or alienate the jury? How can it be shown that these reactions caused harm? Was the jury meager in its damage award? Did the misbehavior of the lawyer harm the client’s reputation – and can a judge or jury calculate money damages for that? Did the court impose financial penalties directly on the client, rather than the attorney, such as an order to pay the other party’s legal fees?
An experienced legal malpractice lawyer can sift through the myriad of details in the earlier proceeding to decipher whether a client has a legal negligence claim against the prior lawyer.