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. I was able to get Joe's case reopened.
After years of litigation, Joe was able to obtain a settlement.