Frivolous Lawsuits — Rule 11

Although lawyers should consider all possible claims when preparing a complaint, they are forbidden from bringing "frivolous" or unmeritorious claims. Such claims can arise if an attorney fails to confirm information supplied by a client and prepares a complaint based on erroneous information. An attorney that assists a party in bringing a lawsuit simply to generate fees or to maliciously harm, harass, or intimidate his opponent, this violates several ethical rules. Attorneys are also prohibited from preparing claims that are unwarranted under existing law unless they can make a good faith argument that the law should be changed.

In addition to being censured for committing ethical violations, attorneys who bring frivolous suits in a federal court can be sanctioned under Rule 11 of the Federal Rules of Civil Procedure (FRCP). Rule 11 requires that complaints be "well grounded in fact" and "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law" and that they not be filed for any "improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."


Violation of this rule may result in being ordered to pay the attorney's fees and expenses of the opponent or in having the complaint dismissed with prejudice. In some cases, attorneys or their clients or both have also been required to pay fines. Rule 11 applies to all documents filed with the court. Carefully conducting thorough, factual investigations and checking out all details in preparation for drafting a complaint can protect attorneys from Rule 11 sanctions. Most states have a rule similar to FRCP 11.

As you might expect, the idea of tapping nominally responsible defendants to pay a plaintiff's damages is controversial. Critics argue that minimally negligent defendants should not be required to shoulder the burden for harm caused by others. They further maintain that, even if business (which is often the deep pocket) can pass on its tort-related costs to the public through higher prices, these higher prices hurt the business. Using business to provide "insurance" only encourages plaintiffs to find wealthy business defendants to sue, resulting in a tort system that is no longer grounded in moral obligation and that serves up defendants as scapegoats.

FEE ARRANGEMENTS

Attorneys use a variety of billing methods to charge for their services. The most common are contingency fees, hourly rates, and fixed fees.

Personal injury, medical malpractice, and collections cases are often handled on a contingency fee basis, in which the attorney agrees to provide services for a fee based on a percentage of the client's recovery. If there is no recovery, the attorney receives nothing. Typically the percentage of the fee depends on whether the case is settled or litigated. A common contingency fee arrangement provides for payment of 33 percent if the case settles before it goes to trial, 40 percent if it goes to trial and 50 percent if the case is appealed.

Paralegals should not discuss fees with new clients. Although paralegals often serve as a liaison between attorneys and clients and may answer questions about fees and costs, they cannot enter into contractual agreements with clients on behalf of attorneys and they cannot establish fees.

TIMEKEEPING

The importance of paralegals maintaining accurate timekeeping records cannot be over-emphasized. The practice of law is both a profession and a business. As such, the generation of profits is essential to the success of any law practice (other than government law offices, such as the county attorney's office or federal district attorney's office). A law offices profits arise out of the hours billed by each attorney and paralegal on staff. These billable hours are the staple of any law practice.

Therefore, it is absolutely essential that all attorneys and paralegals maintain accurate records of the hours they have expended in working on each case to which they have been assigned.

Firms use a variety of procedures for recording time spent and many have employed computerized timekeeping procedures.

To maintain an on-going tally of the time spent on each project and/or task, paralegals and attorneys use some kind of time sheet on which to record the time expended. These time sheets are then typed onto time tickets or into some kind of computer database. Remembering to note the time spent on each task (e.g., reviewing a file, talking on the phone, preparing a document) requires incredible discipline. To assist them in integrating this recording process into their routine, some paralegals place a small digital clock in a visible place on their desk; others use a dictating machine to record time only.

A legal clinic is a high-efficiency law firm that can afford to charge lower fees because of the high volume of cases it accepts. These firms can handle a large volume of cases because they tend to use standardized forms and procedures and delegate a great deal of their work to paralegals. They generate their caseloads through extensive advertising and tend to focus on fairly routine cases, such as divorces, wills, traffic offenses, and simple bankruptcies.

Prepaid legal plans work like most medical plans. Under such plans, people can either select from a group of lawyers or are allowed to pick any lawyer they prefer. In the latter plan, there are usually limits as to what will be covered. Some of the largest plans are union-based. The money deducted from each paycheck is put into a fund that finances the establishment of union employee law firms or independent firms that service plan members nationwide. Other plans mass market through credit unions, hospitals, universities, or other large employers. Most plans require the lawyer to charge a discounted hourly rate for plan members - typically $70-100 per hour.

Unrepresented litigants can also obtain information from various sheets, booklets, and court forms that are available in many courthouses, or they can obtain information from Web sites. In Maricopa County Superior Court in Arizona, a "self-service" center has been created to assist unrepresented litigants in filling out forms, learning about court procedures, and alerting them to appropriate referral resources. Some courts organize information tables staffed by non-lawyers, court clinics staffed by law students, and "lawyers-for-the-day" programs staffed by volunteer lawyers. In addition, some states, such as California, have statutorily recognized "legal document assistants" - non-lawyers who can fill out routine paperwork for litigants representing themselves.

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