It Happened To A Client Of Mine

I don't agree with the result that was reached in Alvarado's case. It's one thing for a lawyer to make a mistake or be negligent, even though it seriously affects the client's case. It's another thing when the lawyer just abandons the case altogether and lies to the client about it. That's worse than having no lawyer at all, because most courts believe that it is fair to visit the sins of the lawyer upon the client.

Mr. Alvarado's case is unusual because the court assessed attorneys' fees against him. This usually doesn't happen. Usually, the client's case "just" gets dismissed. If the client is lucky, the lawyer has malpractice insurance. Funny thing, though, it's the conscientious lawyers who tend to have malpractice insurance. The sloppy ones usually don't.

In about April, 2003, a nice young man, I'll call him Joe, walked into my office with a problem. He had an employment discrimination case against a large multinational corporation. He had done an extraordinary amount of work on his own case. He had gone out and got witness statements, he had prepared a detailed account of all possible relevant facts, and he had a long list of willing witnesses. So what was his problem?

He had the same problem as Alvarado. In fact, he had had the same lawyer as Alvarado. So when Joe found out that his case had been dismissed, he went to his lawyer's office and confronted him. He also took a tape recorder with him. When Joe played the tape for me, I was flabbergasted. Although Joe was sitting across my desk with official court papers showing that his case had been dismissed over a year earlier, on tape his lawyer was telling him that Joe's case was still active and moving forward.

I was flabbergasted not just because it was hard to imagine any lawyer doing this, but I knew Joe's lawyer. I had met him about a year earlier at a function put on by the Federal Court for lawyers that donate services to people who can't afford lawyers. He seemed like a bright, amiable young lawyer with a strong commitment to civil rights. I wouldn't expect this from someone like him.

So I called him up. I told him what the problem was, and he told me the same thing that he had told Joe: that the case was active and in good standing. He told me that he had a court order reinstating the case, and he promised to fax it to me. Days went by and that fax never showed up.

Joe fired his lawyer and retained me. Right now we have a motion before the court to reopen Joe's case. It is the same motion that the court denied in the Alvarado case, but it is a different judge and maybe our facts are just different enough to make a difference. These things are discretionary, meaning that the judge has the power to reinstate the case, but she doesn't have to. Different judges exercise their discretion differently, meaning that there is a different kind of justice from one courtroom to the next, even courtrooms that are across the hall from each other in the same courthouse.