The Volokh Conspiracy - Better Legal Treatment Mandated for Lawyer Defendants Than for Others?

That's what Sayers v. Prugh, Holliday & Karatinos, an Eleventh Circuit decision from earlier this week, suggests. Sayers sued her employer for alleged failure to pay overtime, but her lawyer didn't even call the defendant to negotiate a payment before filing suit. The defendant ultimately accepted a small settlement:

Sometime after discovery closed, Defendants tendered an offer of judgment under Federal Rule of Civil Procedure 68 for $3,500 plus any attorney's fees and costs to which the district court determined Plaintiff was entitled. Defendants denied all liability in the Rule 68 offer. Plaintiff accepted the Rule 68 offer.... Plaintiff, through her lawyer, timely moved for her litigation expenses [which were potentially available under the federall overtime statute]. She asked the district court to award her $13,800 in attorney's fees and $1,840.70 in costs....

[T]he district court denied attorney's fees and costs. The district court wrote that "there are some cases in which a reasonable fee is no fee" and found that this case was such a case.

Now it may well be reasonable to award little or no money in fees and costs when a plaintiff's lawyer fails to use less expensive dispute resolution techniques — calling or writing — and instead files suit right away. But what troubles me is that the court's rationale didn't focus on protecting defendants generally, or protecting courts from having to deal with needless lawsuits generally. Rather, it focused chiefly on civility between lawyers (albeit with an eye towards eventually reducing litigation overhead as a result of such greater civility):

Defendants are lawyers and their law firm. And the lawyer for Plaintiff made absolutely no effort — no phone call; no email; no letter — to inform them of Plaintiff's impending claim much less to resolve this dispute before filing suit. Plaintiff's lawyer slavishly followed his client's instructions and — without a word to Defendants in advance — just sued his fellow lawyers. [Footnote: This explanation counts for little: a lawyer's duties as a member of the bar — an officer of the court — are generally greater than a lawyer's duties to the client. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993) ("An attorney's duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself."); Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1327 (11th Cir. 2002) ("Independent judgment is an essential ingredient of good lawyering, since attorneys have duties not only to their clients, but also, as officers of the court, to the system of justice as a whole.") (internal quotation marks omitted).]

Plaintiff's lawyer showed little concern for the district court's time and energy and no courtesy to his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. [Footnote: The customs of professional courtesy were important to the district court. In its written order, the district court used these words: "This Court is not ruling that a pre-suit letter is always required, but in this case, the Plaintiff's lawyer did not even make a phone call to try to resolve the issue before filing suit. The Defendant is a law firm. Prior to filing suit in this local area, it is still reasonable to pick up the phone and call another lawyer so it won't be necessary to file suit. The defense proffered by Plaintiff's lawyer for not doing so is that his client instructed him to file suit first and ask questions later.... [T]he Court reminds him that the lawyer is the officer of the Court, not the client. This [C]ourt will not permit lawyers to file unnecessary litigation and palm it off on their clients."]

The district court refused to reward — and thereby to encourage — uncivil conduct by awarding Plaintiff attorney's fees or costs. Given the district court's power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court's discretion. [Footnote: We have said that a court may not sanction a lawyer under its inherent powers absent a showing "that the lawyer's conduct constituted or was tantamount to bad faith." We have assumed that awarding no attorney's fees and costs constitutes some informal sanction. Nevertheless, even if bad faith is required, we conclude that the conscious indifference to lawyer-to-lawyer collegiality and civility exhibited by Plaintiff's lawyer (per his client's request) amounted to harassing Defendants' lawyers by causing them unnecessary trouble and expense and satisfied the bad-faith standard.]

We strongly caution against inferring too much from our decision today. These kinds of decisions are fact-intensive. We put aside cases in which lawyers are not parties. We do not say that pre-suit notice is usually required or even often required under the FLSA to receive an award of attorney's fees or costs. Nor do we now recommend that courts use their inherent powers to deny prevailing parties attorney's fees or costs. We declare no judicial duty. We create no presumptions. We conclude only that the district court did not abuse its discretion in declining to award some attorney's fees and costs based on the facts of this case. [Some paragraph breaks added.]

Much of what the court says is quite reasonable, to a point. A lawyer's duties as officer of the court may well be greater than the lawyer's duties to the client — consider for instance the duty of candor to the court. And uncollegial behavior between lawyers as representatives of the parties can indeed waste the time of the court as well as hurting the clients.

Litigation is often a long process, in which many steps — for instance, discovery — can be done either very expensively, through repeated arguments before the court, or less expensively but often with the same practical result, by agreement between the parties and their lawyers. Human nature being what it is, such agreement is much less likely if the lawyers have been needlessly unpleasant to each other. So rudeness among lawyers may indeed lead to unnecessary consumption of the court's time and of the clients' money, often without even any real tactical advantage to either client. (Sometimes hardball or even unpleasant behavior does benefit the lawyer's client, but often it doesn't.)

But all those things apply regardless of who the clients are. Better treatment of lawyer-defendants than doctor-defendants or businessperson-defendants strikes me as much more troublesome, whether the treatment is justified as a matter of "civility" or otherwise. Lawyers should be civil to nonlawyer adversaries as well as to lawyer adversaries. And nonlawyer defendants should be as entitled as lawyer defendants to the benefit of either rules or (as here) discretionary judicial decisions calling for (for example) prelitigation discussion rather than immediate and expensive filing of lawsuits.

This having been said, I acknowledge that there can be nonlaughable public-regarding justifications for better treatment of lawyer defendants: It's possible, for instance, that the ill will generated by uncivil treatment by lawyer A of lawyer defendant B will cause acrimony between A and B in future cases, and will thus waste future courts' time and future clients' money. That wouldn't play out the same way if B weren't a lawyer. But it seems to me that such speculation shouldn't suffice to justify legal decisions that expressly discriminate in favor of lawyers-as-defendants.

Thanks to How Appealing for the pointer.

	[Eugene Volokh, March 6, 2009 at 10:10am] Trackbacks Better Legal Treatment Mandated for Lawyer Defendants Than for Others? That's what Sayers v. Prugh, Holliday & Karatinos, an Eleventh Circuit decision from earlier this week, suggests. Sayers sued her employer for alleged failure to pay overtime, but her lawyer didn't even call the defendant to negotiate a payment before filing suit. The defendant ultimately accepted a small settlement: Sometime after discovery closed, Defendants tendered an offer of judgment under Federal Rule of Civil Procedure 68 for $3,500 plus any attorney's fees and costs to which the district court determined Plaintiff was entitled. Defendants denied all liability in the Rule 68 offer. Plaintiff accepted the Rule 68 offer.... Plaintiff, through her lawyer, timely moved for her litigation expenses [which were potentially available under the federall overtime statute]. She asked the district court to award her $13,800 in attorney's fees and $1,840.70 in costs.... [T]he district court denied attorney's fees and costs. The district court wrote that "there are some cases in which a reasonable fee is no fee" and found that this case was such a case. Now it may well be reasonable to award little or no money in fees and costs when a plaintiff's lawyer fails to use less expensive dispute resolution techniques — calling or writing — and instead files suit right away. But what troubles me is that the court's rationale didn't focus on protecting defendants generally, or protecting courts from having to deal with needless lawsuits generally. Rather, it focused chiefly on civility between lawyers (albeit with an eye towards eventually reducing litigation overhead as a result of such greater civility): Defendants are lawyers and their law firm. And the lawyer for Plaintiff made absolutely no effort — no phone call; no email; no letter — to inform them of Plaintiff's impending claim much less to resolve this dispute before filing suit. Plaintiff's lawyer slavishly followed his client's instructions and — without a word to Defendants in advance — just sued his fellow lawyers. [Footnote: This explanation counts for little: a lawyer's duties as a member of the bar — an officer of the court — are generally greater than a lawyer's duties to the client. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993) ("An attorney's duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself."); Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1327 (11th Cir. 2002) ("Independent judgment is an essential ingredient of good lawyering, since attorneys have duties not only to their clients, but also, as officers of the court, to the system of justice as a whole.") (internal quotation marks omitted).] Plaintiff's lawyer showed little concern for the district court's time and energy and no courtesy to his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. [Footnote: The customs of professional courtesy were important to the district court. In its written order, the district court used these words: "This Court is not ruling that a pre-suit letter is always required, but in this case, the Plaintiff's lawyer did not even make a phone call to try to resolve the issue before filing suit. The Defendant is a law firm. Prior to filing suit in this local area, it is still reasonable to pick up the phone and call another lawyer so it won't be necessary to file suit. The defense proffered by Plaintiff's lawyer for not doing so is that his client instructed him to file suit first and ask questions later.... [T]he Court reminds him that the lawyer is the officer of the Court, not the client. This [C]ourt will not permit lawyers to file unnecessary litigation and palm it off on their clients."] The district court refused to reward — and thereby to encourage — uncivil conduct by awarding Plaintiff attorney's fees or costs. Given the district court's power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court's discretion. [Footnote: We have said that a court may not sanction a lawyer under its inherent powers absent a showing "that the lawyer's conduct constituted or was tantamount to bad faith." We have assumed that awarding no attorney's fees and costs constitutes some informal sanction. Nevertheless, even if bad faith is required, we conclude that the conscious indifference to lawyer-to-lawyer collegiality and civility exhibited by Plaintiff's lawyer (per his client's request) amounted to harassing Defendants' lawyers by causing them unnecessary trouble and expense and satisfied the bad-faith standard.] We strongly caution against inferring too much from our decision today. These kinds of decisions are fact-intensive. We put aside cases in which lawyers are not parties. We do not say that pre-suit notice is usually required or even often required under the FLSA to receive an award of attorney's fees or costs. Nor do we now recommend that courts use their inherent powers to deny prevailing parties attorney's fees or costs. We declare no judicial duty. We create no presumptions. We conclude only that the district court did not abuse its discretion in declining to award some attorney's fees and costs based on the facts of this case. [Some paragraph breaks added.] Much of what the court says is quite reasonable, to a point. A lawyer's duties as officer of the court may well be greater than the lawyer's duties to the client — consider for instance the duty of candor to the court. And uncollegial behavior between lawyers as representatives of the parties can indeed waste the time of the court as well as hurting the clients. Litigation is often a long process, in which many steps — for instance, discovery — can be done either very expensively, through repeated arguments before the court, or less expensively but often with the same practical result, by agreement between the parties and their lawyers. Human nature being what it is, such agreement is much less likely if the lawyers have been needlessly unpleasant to each other. So rudeness among lawyers may indeed lead to unnecessary consumption of the court's time and of the clients' money, often without even any real tactical advantage to either client. (Sometimes hardball or even unpleasant behavior does benefit the lawyer's client, but often it doesn't.) But all those things apply regardless of who the clients are. Better treatment of lawyer-defendants than doctor-defendants or businessperson-defendants strikes me as much more troublesome, whether the treatment is justified as a matter of "civility" or otherwise. Lawyers should be civil to nonlawyer adversaries as well as to lawyer adversaries. And nonlawyer defendants should be as entitled as lawyer defendants to the benefit of either rules or (as here) discretionary judicial decisions calling for (for example) prelitigation discussion rather than immediate and expensive filing of lawsuits. This having been said, I acknowledge that there can be nonlaughable public-regarding justifications for better treatment of lawyer defendants: It's possible, for instance, that the ill will generated by uncivil treatment by lawyer A of lawyer defendant B will cause acrimony between A and B in future cases, and will thus waste future courts' time and future clients' money. That wouldn't play out the same way if B weren't a lawyer. But it seems to me that such speculation shouldn't suffice to justify legal decisions that expressly discriminate in favor of lawyers-as-defendants. Thanks to How Appealing for the pointer.