united-states lawyer professional-ethics
At what point is a lawyer&#39;s actions considered &quot;bad faith&quot; and is there recourse for punishment?
<p>I have been dealing with a lawyer for a payment dispute with an old employer. The lawyer in question has been doing some questionable things and I am not sure which ones would be considered 'over the line.'</p>

<p>Example:
The lawyer set up a call with me to negotiate a pay settlement on some pending deals I had with old employer. I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." The lawyer and I had a phone discussion where he said the same thing and he also tried to negotiate my % of the payment down from 30% to 15%.  A month later, in writing, he claims I am "owed nothing" on the deals in progress.</p>

<p>So, I have been told I would get paid, by the employer and then the lawyer as well. The lawyer then tried to negotiate with me on the payment amount...and now has changed his tune to "you are owed nothing." Is this kosher? If there is evidence of him doing this, is there some kind of ethical violation here? Would that evidence, in support of my case, be a serious issue for the lawyer should we go to court?</p>

<p>There was a separate occasion where I asked the lawyer if he had discussed these matters with anyone else. I know that he has, as I am still friendly with an employee that the lawyer spoke to about these matters. He flat out told me that he "had not discussed it with anyone else" nor would he.</p>

<p>What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? Thanks for any help.</p>

<p>There are basically two kinds of conduct that you identify.</p>

<p>One is backing away from what you believe were oral promises made by the employer and lawyer regarding payment. Whatever the status of the promises made by the employer, the oral statements made by the lawyer would probably be viewed by a court or ethics board as settlement offers or proposals rather than actual binding agreements, and this is unlikely to be considered an ethical lapse.</p>

<p>For purposes of ethics questions and fraud lawsuits, lies about what kind of deal you are willing to make with an adversary don't count as lies. This isn't a terribly logical rule, but is is a well established one.</p>

<p>Given that:</p>

<blockquote>
  <p>I was told (by employer), verbally and in text/email messages that I
  "would be paid when the deals closed."</p>
</blockquote>

<p>It is going to be very hard for the employer to take back those written statements and text and email messages are usually given the effect of signed writings in a court of law. This is going to be taken as a confession of the employer regarding the probably unwritten agreement of the parties regarding your right to be paid on these deals, so you would be well advised to stick to your guns on this issue. The percentages will be another point that is hard for the employer to fight if there is a course of dealings between the parties in which you receive a consistent percentage or there was a written agreement concerning your commission percentage.</p>

<p>Also, even if the lawyer did make a promise and breached it, this would still only be a breach by the employer of a contract made on the employer's behalf by his lawyer. It is not an ethical lapse to breach a contract about future conduct, and a lawyer is not personally responsible for contracts he makes as a disclosed agent of your former employer.</p>

<p>The second is making a false statement of fact about whom the lawyer has discussed the matter with. Lawyers do have an ethical duty to be truthful and failing to do so is an ethical lapse. But, this duty is generally interpreted to apply only to statements of fact which are material. If a lawyer lies to you about how old he is, or whether he's ever had an affair, in the context of a pre-litigation negotiation like this one, the ethical officials won't care. If a lawyer lies to you about something material to the transaction (e.g. claiming that the employer has money in the bank to pay a settlement when in fact it is overdrawn on all of its accounts and has no money coming in and the lawyer knows those facts), this is a serious ethical breach. </p>

<p>It is hard to see how this information would be material, even though it casts doubt on his credibility. Ethically, he owes any duty of confidentiality to his client and not to you, so it isn't your complaint to make from a confidentiality point of view. </p>

<p>Also, unless he discusses confidential advice that he provided <em>to his client</em> when no one else was present to you, he has not waived the attorney-client privilege, contrary to the answer by @IñakiViggers on that issue.</p>

<p>Of course, proving that the lawyer said anything in an oral conversation at which no one else was present comes down to a credibility fight between your sworn statement and his if the lawyer testifies inaccurately about the discussion. A sworn statement from you is proof and would meet the "burden of production" to provide proof in support of your case at a trial, but wouldn't necessarily prevail easily at trial since the judge might not be convinced regarding who is accurate in their account of the discussion (I have avoided the word "lying" because there are a variety of reasons that people inaccurately recall discussions).</p>

<blockquote>
  <p>What would be the sensible way to use this information to my advantage
  while trying to resolve these matters with having to bring suit and go
  to court? Is there anything that this lawyer should fear, if his
  unethical behavior was brought to light, either in court or to a bar
  association?</p>
</blockquote>

<p><strong>The conduct you describe on the part of the lawyer will provide you with little or no leverage in your negotiations and is likely to not even be considered admissible evidence in court since it may be considered a form of settlement negotiations.</strong> </p>

<p>Your strongest leverage will be the written statements from the employer.</p>

<p>But, depending upon the amount in dispute, it may still make sense to compromise given the time and expense and uncertainty of going to court. Even in the clearest case, you probably only have a 90% chance of winning a contested case, and you wouldn't cross the street if you knew you had a 10% chance of being hit by a car as you crossed, even if you knew that the collision wouldn't be fatal.</p>

<p>Unless your state has a wage claims act that covers you, you may have little or not prospect of an attorneys' fee award if you prevail, and representing yourself when the employer has a lawyer will always put you at a disadvantage in a court setting.</p>

<p>If the amount in dispute is great (e.g. $50,000+), hiring a lawyer is probably worth it. If the amount in dispute is small (e.g. $5,000) you may want to file a suit in small claims court and only hire a lawyer for a couple hours of pre-hearing coaching.  </p>

<blockquote>
  <p>is there some kind of ethical violation here? Would that evidence, in
  support of my case, be a serious issue for the lawyer should we go to
  court?</p>
</blockquote>

<p>It is deplorable (and therefore unethical) for the lawyer to be vexatious. But unfortunately that is not considered <em>serious</em> enough to subject him to sanctions. Despite all the judicial babbling about "<em>expediting the course of justice</em>", the truth is that judges and disciplinary bodies entertain much of lawyers' misconduct.</p>

<blockquote>
  <p>What would be the sensible way to use this information to my advantage
  while trying to resolve these matters with having to bring suit and go
  to court?</p>
</blockquote>

<p>There is a chance the lawyer's conversation with your friend/ex-colleague might have forfeited the employer's <em>attorney-client privilege</em>. This privilege most often prevents the injured plaintiff from obtaining crucial evidence of material facts, including but not limited to the defendant's <em>malice</em> and <em>consciousness of guilt</em>. That is why I strongly advocate for the <a href="https://law.stackexchange.com/questions/30356/how-do-concepts-like-intent-discrimination-and-bias-apply-to-an-artificial-int/30361#comment54498_30361">elimination of the attorney-client privilege</a> (and other similar or related privileges), as they severely impede the ascertainment of the truth and the administration of justice.</p>

<p>If at all possible, have your friend produce an affidavit reflecting the substance, date, and other relevant circumstances of his conversation with the attorney. Depending on the substance of their conversation, this could permit striking the attorney-client privilege even if your friend subsequently changes his mind and complies with the employer's instruction not to cooperate in your discovery efforts.</p>

<p>At some point, you will need to file a copy of that affidavit for the purpose of obtaining evidence that would otherwise remain unavailable to you on grounds of the attorney-client privilege.</p>
