Or, What Is Likely to Happen When an Attorney Does Wrong?
[This is not meant to be legal advice, and I am not an attorney.]
I don’t mean to make too big an issue out of how realistic Win Win makes this, because like other aspects of the “setup” and overall plot of this movie—as with Tom McCarthy’s other films—the full plausibility is not so important as is the sense of truth of the human interactions that are the more important focus of the films. But it does raise an important question—what are we talking about when we say an attorney is acting unethically?—that is more directly addressed (and in ways more wildly satirized) in such films as those of the Coen brothers. For instance, in Intolerable Cruelty, the remark is made a few times by different characters, “Couldn’t you be disbarred for that?” or “I could have you disbarred for that.” If people thought the infractions attorneys are capable of entail only (and quickly) disbarment, and the only question then is how often attorneys are guilty of these infractions, they’d be mistaken.
[This is not meant to be legal advice, and I am not an attorney.]
I don’t mean to make too big an issue out of how realistic Win Win makes this, because like other aspects of the “setup” and overall plot of this movie—as with Tom McCarthy’s other films—the full plausibility is not so important as is the sense of truth of the human interactions that are the more important focus of the films. But it does raise an important question—what are we talking about when we say an attorney is acting unethically?—that is more directly addressed (and in ways more wildly satirized) in such films as those of the Coen brothers. For instance, in Intolerable Cruelty, the remark is made a few times by different characters, “Couldn’t you be disbarred for that?” or “I could have you disbarred for that.” If people thought the infractions attorneys are capable of entail only (and quickly) disbarment, and the only question then is how often attorneys are guilty of these infractions, they’d be mistaken.
In New Jersey, last I knew, there are five levels of sanction, with disbarment as the highest-level (for the most serious problems): from the least serious to the most, admonition, reprimand, censure, suspension of license, and disbarment. Typically, when an attorney is guilty of unethical conduct, a complaint is made to the Office of Attorney Ethics, in particular that local board representing the state district (there are about 10 or 12 in New Jersey) in which he or she keeps his or her office. (A complaint typically is addressed to the secretary of this local board.) There is then a process allowing the accused attorney to defend himself, similar to a judicial process. Usually, I think, one who makes such a complaint needs an attorney to do it. And it would seem that the usual complaints are by clients about their attorney, who they think has served them poorly. I don’t know how easy it would be for someone on one side of a lawsuit to file a complaint—and have it honored and acted on to completion—against an attorney representing someone of the other side.
Looking at the movie
In the case of Mike Flaherty in Win Win, he is recognized (per the assumptions of the movie) to have acted unethically, but there are two things to note about this: how bad is the infraction, and what recourse does someone have who wants to complain about the attorney for this infraction? To address the second question: I think it would be Leo, the elder whom Mike was serving, who would complain to the local board of the Office of Attorney Ethics about Mike, and since he is incapacitated, he would need another attorney to do so. However, the movie has the attorney for Cindy, Kyle’s mother, point out Mike’s lapse, with the melodramatic comment (this may paraphrase a bit), “That’s enough to hang you.”
That seems a little extreme: first—where would he be, metaphorically speaking, “hanged”? Would it be in the pending hearing that Cindy (with her attorney’s help) has ostensibly arranged in order to have a reconsideration of Leo’s guardianship status, in which Mike’s lapse could be mentioned as a significant cause for reconsideration? Quite possibly.
But as the movie has it, and as I think is quite realistic, calm heads prevail, and Mike arranges with Cindy what seems fair: he will send her the stipend, and he, Mike, will be a guardian for her father: this is a pretrial settlement, and it avoids litigation that could have inflamed and caused more problems for all involved.
To address the first question: I am not a lawyer, so I am not sure about this, but it doesn’t seem to me Mike’s infraction is all that bad. Maybe to Joe Tiboni, the cowriter of the movie’s story with McCarthy, while Tiboni is also an attorney, this would seem quite unacceptable—but maybe that is so to him as a fastidious attorney who never did anything wrong in his career. To me, though there is a dishonest side to Mike’s having indicated to the judge he would have Leo live at home while he ends up subverting this intention, still Leo has a home where he is protected—the assisted-living facility—and his house is still in his name (though one wonders how much care it is getting). Mike as the guardian is getting money, as the arrangement legally allows—it’s not like he’s stealing more than he’s entitled to. So for all this to lead to a fellow attorney saying “That’s enough to hang you” seems to me like overkill. This may seem like fussing over technicalities, but this is just the sort of area where what someone did and how bad it was are crucial to what kind of complaint one might make and what kind of sanction it would seem to warrant.
Would Mike be disbarred for what he did with Leo? I would hardly think so, even admitting I don’t know the law in this area (elder law) well at all.
Comparing a real-life example
Let me put it this way. A lawsuit I was involved in included an attorney, “DM,” for the opposing side (“XYZ,” who had been a former “advocate” of sorts for me for several years) who engaged in the following:
(1) allowing a false certification by his client XYZ, which violated RPC (“Rule of Professional Conduct”) 3.4 (b), that an attorney shall not “counsel or assist a witness to testify falsely…” (one would assume that this rule, specifically referring to witness, could apply to a plaintiff/litigant, too—especially when a certification the litigant produces contains a key point that is expressly contradicted by hard-copy evidence that the court and this litigant was sent twice by this defendant already);
(2) trying to have a motion (not concerning me directly) be heard on a date (in August 2008) that was not on the pre-set schedule of motion days, in apparent violation of Rule of General Application 1:6-3(a);
(3) in general, violating RPC 3.4(d), which enjoins a litigant’s pursuing “frivolous discovery requests”;
(4) unilaterally arranging with the court, and/or seeming as if he would do this, to adjourn (postpone) a hearing I was trying to schedule for my second MSJ without my full input in the matter, which may have violated (for at least one rule) RPC 4.3, that an attorney should take care in dealing with an unrepresented person (DM could be said to have violated this in more general terms on a number of occasions, in more subtle ways);
(5) in violation of Rule of General Application (R.) 1:5-1(a), failing to serve all parties with papers that everyone should have gotten equally—whether these were notices of certain things like the dismissal of two codefendants by the plaintiff (I was not served with this notice) or discovery items (omissions regarding which at least one defense counsel remarked);
(6) the foregoing as well as apparent delaying tactics and filing oppositions with the court that were clearly deficient would seem to violate RPC 3.2, regarding expediting litigation, that “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process”; and
(7) asking interrogatory questions far more numerous, many of a different type, and in not the right order for a personal injury case, contrary to Civil Practice Rule (R.) 4:17-1 (b) (1).
And this is on technical matters; I could also throw in the fact, as a more “prissy,” subtle ethical matter, that his allowing XYZ to frivolously include me in the lawsuit has resulted in misleading debris on the Internet linking me to the suit (with the risk of misinterpretation of this by laypeople), with consequences that still go on even today (independent of however I’ve tried to explain my side of the matter, especially online). (Cf. the fact that during The Write Agenda’s heightened nonsense through about November 2011, people seemed to think I was one of the people behind it; for one thing, when Writer Beware’s blog entry on The Write Agenda in early October was posted, there was a huge uptick in searches for me on LinkedIn.)
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I did seriously consider filing a complaint against DM (XYZ’s attorney) in 2008 (and 2009?), looking into various sources of information on this. It was not an easy process. I decided not to file a complaint, and have felt comfortable with this (in general, but not 100 percent); but people may find it complex why I did this.
The reasons why were both practical and based on a kind of principled understanding.
First, I lacked hard-copy evidence on some items, while I had evidence on others—and I always feel that the more hard evidence you have in going into an important legal process, the better. I had written material and some recordings of voice mails from DM, but not all I needed. In particular, if it were some other “juridical” situation I contemplated going into, I might have gone in with only my word and memory on some items. But I did not relish my word on some things going up against the word of DM, who had already proven himself dishonest in the XYZ litigation. (This is obviously a frustrating prospect that contributes to the idea that the legal system is a self-protecting, parasitical “superstructure” on the community of laypeople.)
Second, the idea—which guiding information regarding the Office of Attorney Ethics seems to recommend—that I needed an attorney did not appeal to me. I had just fought a messy lawsuit on my own; why did I need an attorney because of how DM had comported himself?
Third, I was exhausted from the horrible lawsuit. I didn’t want to go up against DM again and right away, after what I’d been through.
Of the five levels of sanctions of ascending severity that the Office of Attorney Ethics can apply, I felt I could get up to the second or third. With work, that is. Definitely, I didn’t feel I could get DM disbarred—either as a practical matter or in my cooler assessment of what he had done. (When especially angered by him in retrospect, I thought of his disbarment.) So when people think any attorney who does the least bit wrong “can be disbarred,” the reality in terms of the available sanctions and what the system allows do not square with this.
More subjectively, I felt that the Ethics board system really was a matter of “the Guild” of practicing attorneys—“Guild” is my scornful name for them as I consider them in a wider array of contexts—protecting itself and its prerogatives, given how hard it was for me to pursue a complaint and try to prevail.
Why it may be good to complain about an attorney, taking the long view
One defense counsel in the XYZ case felt that I should pursue the complaint against DM if I felt it justified, and she made the argument—an example of attorney fastidiousness that I could or may not criticize her for, depending on mood—that it was better to try to get sanctions against a wrongdoing attorney than not to, because (as a counterexample) one time she had failed to pursue a complaint against one unethical attorney and now he was a judge.
I forget exactly what I answered her here, but what I have long thought as a good answer to this is, Given how DM performed in this suit—and given how he has talked about his work on a writing-related Web site—I seriously doubt he would or could be a judge anywhere higher than traffic court. So, as a practical matter, I don’t worry about not having complained about him.
Meanwhile, with an odd turn of thinking that may even puzzle you, I sometimes think I did him an appropriate courtesy not complaining about him through the Ethics board; for if a complaint had been honored and sanctions were applied to him, that may have hurt his practice. As it is, he can go on working as the kind of attorney he is, able to keep a roof over his head. Since I was not entirely well versed in law, this seemed a decent enough “compromise outcome.” But my being able to remark about him online seems a good compensation for being unable to go through the (possibly kangaroo-court) process of a formal ethics complaint. Then if he grumbles about negative things said about him online, and how it “may hurt” his career, he can be assured that I feel the same way, because I’ve suffered the same (partly at his hand)—and I can’t charge hourly in my work what he does in his.
***
But you can see how hard it is to take a stand on an attorney who has made unethical moves: Does the system readily allow you to address this? Will it be too much for you to pull off, technically and emotionally? Will the attorney only get a slap on the wrist as a result? Etc.
So—when it comes to Mike Flaherty: was he in danger of getting disbarred? I don’t know what cowriter Joe Tiboni thought, but I think in line with the apparent precepts of the movie, probably not (though Mike’s wife does make reference to the possibility he could lose his “license”). From a broader perspective, should someone like Mike be seriously sanctioned at all, given what else we can see that is not acceptable in the world of practiced law? I seriously don’t think so.
But you can see how hard it is to take a stand on an attorney who has made unethical moves: Does the system readily allow you to address this? Will it be too much for you to pull off, technically and emotionally? Will the attorney only get a slap on the wrist as a result? Etc.
So—when it comes to Mike Flaherty: was he in danger of getting disbarred? I don’t know what cowriter Joe Tiboni thought, but I think in line with the apparent precepts of the movie, probably not (though Mike’s wife does make reference to the possibility he could lose his “license”). From a broader perspective, should someone like Mike be seriously sanctioned at all, given what else we can see that is not acceptable in the world of practiced law? I seriously don’t think so.
What are we left with? If the realm of practiced law is sometimes so “unsusceptible to being held to account,” and is so self-protective, what can we citizens do?—since we know that Abraham Lincoln didn’t extol, in the Gettysburg Address, “government of the people by lawyers for lawyers.” What we can do is scorn lawyers in the strongest terms, in art and other forms of self-expression, and there is no shortage of people with the ideas and the will to do this.
On to a consideration of the Coens. What’s a good “stage direction”? Picture Jim Carrey’s Ace Ventura pretending early in his first movie to be a UPS-type deliveryman, carrying a package he intentionally damages in order to have a pet thief sign insurance-claim forms on top of it while Ace takes the dog the man had stolen; our stage direction echoes, as Ace prepares one last prodigious kick of the dented package down a long hall, his saying with comical savoring, “We’re going downtown!”
