28 October 2005

Let's Consider Both Sides, Now

So Lamar Smith (R-TX) doesn't think the states do enough to regulate some kinds of lawyer misconduct.

He's right. Unfortunately, his proposed "solution" is not only inadequate, but unfair, discriminatory, ignorant, and racist.

I'll leave aside "federalism" concerns for the moment—after all, I have more than once advocated federal regulation of attorneys—and focus just on the obvious flaws in Smith's proposed legislation. In no particular order (but each independently sufficient to justify trashing it):

  • Why only plaintiff's lawyers and frivolous claims? <SARCASM> Oh, that's right—the inherently honorable corporate and insurance defense bar (since their clients are inherently honorable) would never dream of raising frivolous defenses or hiding evidence to make a plaintiff's valid complaint look meritless. </SARCASM> In my sad experience, at least half (and probably more) of the attorney misconduct out there based on "frivolity" (although it's awfully hard to be really frivolous in a $900 suit and Gucci loafers) comes from the right side of the v. In fact, at least some of the "frivolity" on the left side of the v comes from perceived hiding of evidence on the right side.
  • A substantial portion of "frivolous" claims come in suits that concern discrimination in some fashion, whether real or merely perceived, whether remedial by law or not. Rep. Smith's proposal is at minimum inconsistent with the fee-shifting provisions built into many of the underlying statutes. I think it's far more insidious than that, based on some of Rep. Smith's past conduct and proposed legislation; however, I'm not in his district, so I really can't do anything about that.
  • The particular mechanism is only going to further distort Rule 11 (and, for that matter, Rule 37) practice. On the one hand, judges will be particularly disinclined to find that a lawsuit is frivolous, because they don't like mandatory sanctions. The Judicial Conference has already made that clear. On the other hand, it's going to bring personalities into play in a way that is detrimental to both courtroom process and client representation. Plaintiff's counsel who have gone up against judges before they were confirmed to the bench will have to tread even more lightly; defense counsel will get (even more of) a subconscious free pass; and so on. It doesn't help that a far, far higher proportion of federal judges served only as defense counsel than ever served as plaintiff's counsel, let alone representing individuals instead of organizations on the left side of the v.

Bluntly, if sanctions are going to be made mandatory, they must be irrespective of procedural posture and stated cause of action. And that's before considering the substance of the sanctions. What's really sad is that federal judges already have the power to bar counsel from appearing in their courtrooms for outrageous conduct; all this legislation does is try to change outrageous to something approaching expected (even if technically inappropriate). The judge is the only one in a position to determine, within the complete context of the matter, that particular behavior deserves particular sanctions. No member of the House—and particularly not one from a gerrymandered district—should even dream of doing so. Or, perhaps, we should suspend members of Congress for a year for ever proposing three porkbarrel or otherwise self-interested spending provisions…