Lawyers Threaten Each Other Way Too Much

Receiving threats from adversaries about potential ethics complaints and frivolous litigation is just a fact of life for many lawyers -- and it needs to stop.

One of my favorite courthouses to visit is the Supreme Court of New York, Kings County in downtown Brooklyn.  The building and the community have a certain vibe to it, and it is a delight to visit the courthouse, even though litigating there is not always so pleasant.  One of the unique characteristics  of this place is that it is one of the few state courthouses I have visited that has a dedicated attorneys’ room.  Anyone who has visited this attorneys’ room can relate that this room is a pretty sad-looking place, and it is usually strewn with garbage, paper, and other items.

However, on a wall in the attorneys’ room in this Brooklyn courthouse is a picture of an old-school-looking attorney with a card held up.  The card reads: “I’d never hurt another lawyer.”  I have no idea who put this picture on the wall, and I am not sure if the picture is still there; it’s been a while since I’ve been to the courthouse.  However, I think that this picture is a great testament to how attorneys should treat one another.

One of the ways that lawyers do not adhere to this guidance is by needlessly threatening each other.  Throughout the course of litigation and while negotiating transactional matters, attorneys frequently threaten one another in a variety of ways.  For instance, attorneys ask for discovery sanctions all of the time, even when the situation clearly does not warrant sanctions.  Indeed, it is a common practice after filing a motion to compel to just throw in the kitchen sink and ask that an adversary’s pleading be struck and that sanctions be imposed on the other party.

I remember the first time I received a nasty document that included such threatening language towards the beginning of my career.  I was so scared that I would be fired if my answer was struck, and I was incredibly nervous that sanctions could impact my professional standing.  I stayed late at the office that night, drafted a letter to my adversary listing why he was wrong to seek sanctions, and prayed that the judge did not side with the other lawyer.  Of course, the judge didn’t, but there was no reason for the other attorney to threaten me like this and put pressure on me for weeks.

Another way that lawyers inappropriately threaten other attorneys is by filing illegitimate frivolous lawsuit motions.  Of course, it makes sense for lawyers to file frivolous litigation motions whenever a litigant makes one of those “natural man” arguments, or perhaps if someone sues for defamation when the speech at issue is clearly protected.

However, far too often, lawyers file frivolous lawsuit motions when their adversary has a meritorious claim.  Of course, parties can disagree about whether such claims will prevail in court.  Nevertheless, another way that attorneys threaten each other is by misusing frivolous litigation provisions, which puts a lot of stress on other parties to a lawsuit.

In addition, lawyers routinely threaten each other with ethics complaints.  Even though conduct is clearly ethical, attorneys commonly threaten to report adversaries to bar authorities if they pursue a course of action.  Of course, many states have ethics rules that explicitly prevent lawyers from making such threats.  Nevertheless, it is very common in legal practice for adversaries to threaten you with ethics complaints, even if the conduct complained of meets every ethical standard.

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I am not too sure why lawyers threaten each other on such a routine basis.  One reason is that lawyers use threats to get an edge over their adversaries.  On one level, I do not blame lawyers for trying to prevail in a dispute by making threats against another attorney.  Indeed, lawyers are ethically required to provide diligent and competent representation.  In addition, as I have noted in a few prior articles, most of the times the law and the facts alone will determine the outcome of the case, and lawyers have very little wiggle room to make a difference.  Threatening other lawyers can be one of the limited tactics other attorneys can use to serve a client in some instances.

However, threatening other attorneys often causes more harm than good.  In order for parties to reach amicable resolutions to cases, they need to have a working relationship with one another.  In addition, lawyers routinely request adjournments, ask for courtesy copies, and request other favors of their adversaries.  Threatening other lawyers can strain relationships between attorneys, and this can make it more difficult for attorneys to serve their clients’ interests.

Sometimes, it seems that lawyers threaten other attorneys in order to keep up with the adversarial nature of the legal profession.  I have seen many attorneys I know threaten other lawyers because they do not want to seem weak or incapable of using somewhat dirty tactics to serve their client’s interests.  However, practicing law doesn’t have to be unnecessarily adversarial.  Of course, the legal profession is full of tension, but just as there is an “unnecessary roughness” rule in football, there should be a similar standard limiting some tactics in the legal profession.  Of course, I have handled many matters involving attorneys who were on good terms and merely argued the facts and the law of a case without stooping to making idle threats.

In the end, I am far from the first attorney to talk about the hostile nature of the legal profession.  And receiving threats from adversaries about potential ethics complaints and frivolous litigation is just a fact of life for many lawyers.  However, there is no reason for lawyers to make idle threats to one another, and if attorneys feel confident in their abilities, they should just argue the facts and the law of a case.


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Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.