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Challenging the Law

Q. It's a loser under current case law, but my client still wants me to seek relief that would require a major reversal of precedent. If she'll agree to a generous retainer and hourly fees, should I take it?

A: Under Rule 3.1 of the Rules of Professional Conduct, if you have a good faith argument for an extension, modification or reversal of existing law, you are ethically permitted to accept the challenge.

I don't know the nature of your legal issue. So I leave to your judgment whether you have a legitimate shot at changing the legal landscape. If you do, and the issue is important enough, your pursuit may be extremely valuable to your client and to society at large. Were it not for courageous legal mavericks, we'd still be bound by cases like Plessy v. Ferguson, with students in segregated schools learning about a society lacking many of the civil rights we now take for granted.

There is a place for legal rebels in a system that leaves a lot of room for improvement and reform. But lest you get lost in some romanticized version of Supreme Court success, you must be sure that your client shares your vision of the case and is willing to assume the expense of the challenges that lay ahead.

That may be true in your case. But this is as rare as the landmark cases we learned about in law school. Clients often lose their courage and their patience after spending years in litigation and a fortune in fees. When that happens, they may balk at your bills or contact a certain "customer service department" run by an official with the title of Bar Counsel.

So before filing your next "landmark case," make sure your client fully accepts the challenge as well:

​➤​ Discuss the current state of the law and the realistic impediments to success;

​ Explain your strategy in seeking to reverse, modify or extend existing law, but don't over-sell it. You must also address the counterarguments you may face in the process;

​ Advise the client of the potential for protracted litigation involving years of appeals and proceedings at various levels of the court system;

​ Discuss the expense your client is likely to incur over the lifespan of a labor-intensive case; and

​ Reduce your advice to writing - unless you memorialize your "sobering conversation" in a retainer agreement that leaves nothing to the imagination, you risk the wrath of a dissatisfied client with a very different recollection down the road.

Even if you have a well-written retainer agreement, you should be leery of filing cases you are likely to lose. No matter the odds or explanations, losing clients tend to be unhappy clients. And unhappy clients are more likely to take their complaints to Bar Counsel.

But if you ​and your client truly believe that the cause is worth the risk, go out there and change the law.

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Attorney Grievance defense attorney specializes in defending lawyers in disciplinary proceedings before the Maryland Attorney Grievance Commission and the D.C. Bar's Board on Professional Responsibility involving professional misconduct, legal ethics, disbarment, suspensions of law licenses, petitions for disciplinary action, reprimands and sanctions for unethical conduct. If you receive a letter from Bar Counsel Lydia Lawless, Disciplinary Counsel Hamilton Fox, or from any attorney disciplinary board in Maryland or the District of Columbia, retain experienced attorneys with expertise in lawyer discipline and breach of ethics cases to avoid sanctions for professional misconduct. We help lawyers avoid disbarment, suspension, reprimands, censure and informal admonitions by drafting responses to client grievances and ethical complaints; representing lawyers in peer reviews, evidentiary hearings, and oral arguments before the BPR and the Court of Appeals; filing petitions to reinstate an attorney's license to practice law; conducting law firm ethical compliance audits; and drafting legal ethics opinions to protect lawyers from ethics charges. In many cases, disciplinary proceedings may be dismissed, dismissed with a warning, or result in a conditional diversion agreement with Bar Counsel to rectify misconduct. Lawyers may need help in managing their law firm attorney escrow IOLTA trust account and complying with attorney trust accounting rules to avoid charges of ethical misconduct. Do not represent yourself in responding to an attorney grievance, law firm client complaint, or other allegation of ethical impropriety. Attorney grievance defense counsel may help you comply with legal ethics rules, avoid sanctions like suspension or disbarment, and avoid future attorney grievances.

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By The Lawyer's Lawyers | Kramer & Connolly and Irwin R. Kramer who are responsible for the content of this informational website.   This website is designed for lawyers faced with attorney grievances. As cases do differ, past performance does not guarantee future results.
 

NOT AFFILIATED WITH THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
OR THE BOARD ON PROFESSIONAL RESPONSIBILITY OF THE D.C. BAR