Published in the Ethics Column of Headnotes, the monthly publication of the Dallas Bar Association
The Unwritten Ethical Rules of Litigators
Of the making of ethical rules there is no end. The panjandrums of ethics have of late inundated us with changes and changes upon changes. But the written rules do not encompass the heart of what it is to be a lawyer. We must never forget that our license to practice law is a license to serve, not to mulct; and our goal is to make peace, not war. It is my observation, based on 49 years of practice, that there are unwritten rules that the best litigators observe. Here are some of them; there are certainly others.
Rule 1: Thou Shalt Not Make of Thy Client a Cash Cow
Most of us charge by the hour. When we settle a case, our fees stop. There is a temptation to keep a lawsuit alive to keep the fees flowing. That impulse must be most rigorously resisted. Worst case in my practice: During one of those periods when law firms were struggling to survive, a wealthy out-of-state client called me because he didn’t know why nothing was happening in a Tarrant County lawsuit against him. I discovered that his maximum liability was $40,000. He had hired a venerable Fort Worth firm that had charged him fees in excess of $190,000.
Corollary 1: Thou Shalt Not Pile On
In some larger firms there is a tendency with a flush client to cluster lawyers and paralegals on the case. I recollect a case where I represented a bank, and my fees were $18,000. The Houston behemoth representing an institutional client had run up a bill of $92,000. At issue was a house worth$150,000. A friend, now deceased, had a rule of thumb: fees should never be more than 25% of what’s at stake.
Corollary 2: Thou Shalt Not Transmute Thy Client’s Wrath Into Gold
Angry people bring lawsuits. And angry people are easy pickings for unscrupulous lawyers. This is true in spades in divorce cases where a petitioner may not want a reasonable settlement but wants, rather, the still-beating heart of his soon-to-be-ex-spouse in the palm of his hand. In a case I mediated a while back, the total fees charged by the the two attorneys was $110,000. The total assets of the couple amounted to $100,000
My Brothers and Sisters of the bar, it ain’t all about the money. Honest. Rule 2: Thou Shalt Not Be an Instrument of Thy Client’s Wrath.
Representing a client bringing a lawsuit, our task is to pour oil on troubled waters, not to light the oil once poured. Some clients, however, want only to inflict the greatest pain possible on the defendant. Given the enormous costs of litigation these days, merely filing a lawsuit will cause pain
both fiscal and emotional. It is our job as counselors to cool our clients’ ire. We do not do vendettas.
Rule 3: Thou Shalt Not Sue the Impecunious
Texas is the most debtor-protective state in the Union. One’s homestead is 100% exempt from execution. Wages cannot be garnished. Since sale under a writ of execution will on a good day yield only ten percent of the purchase price of an asset, Texas’s $100,000 exemption from execution for a married couple will protect assets purchased for a million dollars. Wherefore this largesse? It lies in our history. Who would come to Texas before air-conditioning? Answer: Folks running from the law or from their creditors.
At a practical level, this means that when taking on a case for a potential plaintiff, we must explain to our client how difficult it is to collect a judgment against the average Texan. The operative rule is: don’t throw good money after bad. If your client nonetheless wants to bring the suit simply to cause the defendant grief, see Rule 2.
More important, however, is that Texas’s humane policy protects the most vulnerable. The average Texan is unsophisticated; being sued terrifies him. In my experience, telling clients that they are judgment-proof does not quench the fear. I recently had a case where one of the defendants was a woman without assets, living on her Social Security payments, suffering from cancer, and fear- stricken that she was being sued for hundreds of thousands of dollars. Opposing counsel rebuffed my requests simply to dismiss her. Is it any wonder that the public at large does not respect our profession?