What is the legal punishment for filing frivolous lawsuit? For every case backed down like Carreon, there must be a lot more people caved to legal backmails.
It took years for anyone to take responsibility for allowing him to continue to practice and abuse the system, and he was famous for trolling the legal system. That tells me the bar needs some serious reform.
The 'bar' needs competition. It has a monopoly on who is allowed to practice. If there were multiple bars then there would be competitive pressure for them to clean themselves up. The medical associations need this as well. Anywhere there is one accrediting society there should probably be multiple ones. With transparent feedback on how the members of each perform.
It's one of those funny things that people never seem to notice. We believe in competition and a marketplace but look past the obvious monopolies!
I talked to some folks recently who oppose the requirement that one be bar-certified in order to represent someone in court...i.e., they believe you should be able to bring your friend, who watches a lot of Law and Order or something, to court with you as a representative. The more I think about it, the less crazy it sounds. You can already represent yourself in court; why shouldn't you be able to bring some help that doesn't cost $500/hour? And, it wasn't always that way in the US; the bar association pulled some strings and made it happen (conveniently, most politicians and judges are also lawyers, so they're possibly the most powerful special interest in the country).
I dunno if this is the only way to solve the problem...but, right now, our legal system strongly favors the wealthy (this can be seen in convictions and sentences of rich folks vs. poor folks). Some of the disparity is legislative (i.e. cocaine possession having a vastly shorter sentence than crack), but a lot of it is simply in the difference in quality of representation.
Not to mention that when it comes to lawsuits, only rich people have the money to play at those games. Which may be why the worst polluters always seem to end up in the backyards of poor people. Rich people would sue them out of existence. Poor people have no recourse, unless some ambulance chaser sees an opportunity for a class action suit (where he'll make millions and the people affected will get a few measly bucks). I dunno if removing the bar as an impediment to representing someone in court would solve this problem (probably wouldn't; there are lots of things stacked against poor people in our court system, not just the lack of affordable representation), but it might be a start.
Whew...I didn't know I had such strong feelings on this issue until I started ranting about it. I guess that's how a lot of folks are...never thinking about the bar (or the medical association), or what unintended consequences it might have.
Exactly where would the pressure for a bar-competitor to clean up come from? Assuming their income comes from applicants and membership fees, wouldn't they want to let in as many people as the inevitable regulations allow?
Slow reply so you may never see this. But you raise a very good point. As do the other people who replied.
* If a company misbehaves then people can boycott it and/or protest against it. It can be punished in a way that affects it's competitiveness. Public pressure can't be applied in the same way to an organisation without competition.
* If we had multiple bar associations then hypothetically certain bars would preferentially attract good lawyers and others would attract bad. Good lawyers would transfer from a bad bar to a good bar (Please excuse simplistic use of good/bad). So there would indeed need to be an overreaching feedback mechanism that would punish a 'bad' bar association full of bad but cheap lawyers.
I suppose a simplistic solution could be:
* Enforcing multiple bar associations that are not allowed more than (say) 15% of the total number of lawyers
* A mechanism for banning any of these associations if they don't keep there members in check.
A thought just jumped into my head that the Bar Association and the AMA are essentially organisations that are, 'Too Big to Fail'. If you (The public through your elected reps) can't punish something then you can't control it or force it to enforce standards.
Thanks for the thoughtful reply. I think your reasons make a lot of sense. Potentially, some associations get known as "the good ones" and then they're more competitive than the others.
Ultimately though, it comes down to the laws/regulations. If they leave room for an association that doesn't care about its reputation, the lawyers who would be kicked out of the reputable associations will simply transfer to it and nothing is solved.
And what makes you believe the one monopoly bar association doesn't have the same market pressure to let as many people in as possible? They are also funded through membership dues, and have no public or government oversight.
Nothing. I never asserted as much. I'm disagreeing with the claim that more associations create a pressure to "clean up." I can see no source for that pressure so I'd like to know what the person meant.
Cool. I agree with you. There isn't very strong pressure to play nice in the current system...what pressure there is comes from judges, who often have been practicing lawyers and may be again in the future (or they may be hired by the bar association itself), so they may be inclined to keep the status quo if it is economically beneficial to them. Competition probably wouldn't put any additional pressure on this, though it might, if the higher standards led to some sort of better economic outcome for the membership. But, I don't see how that would necessarily come to pass given the incentives to play dirty.
It depends on the jurisdiction and circumstances. In Federal Court, there are sanctions as a penalty (to deter more frivolous action) and damages (to compensate the other side). See http://www.law.cornell.edu/rules/frcp/rule_11#rule_11_c
A court may:
- Order one side pay for the other side's attorney's fees
- Order one side to pay for the court's wasted time
- Dismiss the case
- Issue a public reprimand
Also, an attorney may violate professional responsibility laws which could have other penalties, such as being disbarred.
California has the US's strongest sactions against SLAPPs (strategic lawsuits against public participation). I'm sure this had something to do with dropping the suit, since it was brought up in Californian court.
