UK Law Articles
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The Times
June 15 1999
British lawyers are suit-free unlike in the US. James D. Zirin reports
Should clients be able to sue their lawyers?
The lawyer's role has traditionally been that of professional advocate, positioned above the fray, not personally involved in the client's quarrel. The lawyer usually goes home on sentencing day. The client may not.
In Britain lawyers cannot be sued for their performance in court. Their immunity from negligence actions has been confirmed in court rulings - and the immunity extends to any work "intimately connected" with the court hearing. However, consumer groups and some barristers believe that the rule is outdated and should go.
The conventional wisdom that lawyers are suit-proof is being challenged in the United States, where some lawyers have found themselves drawn into litigation arising from their professional duties. There was the recent jury verdict for $45 million against the law firm Milberg Weiss Bershad Hynes & Lerach, seen as the emperor of the plaintiff's class action bar. The firm's kingpins, Melvyn Weiss and William Lerach, have reportedly earned at least $102 million each since 1988, largely from contingency fees recovered against big corporations.
But not all the firm's cases have resulted in success. In 1988 Mr Lerach lodged a claim in California for $200 million. The defence expert was Daniel R. Fischel, a Chicago-based lawyer and consultant who is now Dean of the University of Chicago Law School.
The jury rejected Mr Lerach's arguments and returned a verdict favouring the defence. But in 1990 Milberg Weiss brought an action arising from the collapse of Charles Keating's Lincoln Savings & Loan. Among the 100-odd named defendants Mr Lerach named Mr Fischel personally.
Why? Mr Fischel's consulting firm had stung Mr Lerach by delivering a report commenting on conclusions by federal regulators that Lincoln had made risky investments. Mr Fischel's consulting firm settled for $716,000. Mr Fischel retaliated and sued Mr Lerach's firm for $209 million, representing alleged past and future losses. He also sought punitive damages of $45 million based on the bonanza income of the Milberg Weiss firm. It took six hours for the Chicago jury to return $45 million against Milberg Weiss.
Lawyers have never before been so vulnerable to suit for the tactics they employ in court. Milberg Weiss settled for $50 million, none covered by insurance, to avoid further jury deliberations on the issue of punitive damages.
In another case Martha Stewart, the American lifestyle guru, sued the lawyer for Matthew Munnich, a landscaper employed by her East Hampton neighbour, the real estate baron Harry Macklowe. There had been friction between the two ever since she accused him of trying to "suburbanise the area with inappropriate dark greenery".
Mr Macklowe promptly built an 8ft-high fence on his property so that he would see as little as possible of Ms Stewart. Mr Munnich was part of the crew building the fence. According to Mr Munnich, Ms Stewart became enraged when she found out about the fence and pinned him against a pole with her Cherokee Jeep.
Mr Munnich's lawyer, Leonard Austen, sought a settlement by threatening to press civil and criminal charges against Ms Stewart and to go to the media. After the District Attorney cleared Ms Stewart of criminal charges arising from the incident, Mr Austen filed a civil action against Ms Stewart on behalf of Mr Munnich. Ms Stewart counterclaimed against Mr Munnich and Mr Austen in a Manhattan federal court, claiming that Mr Munnich and his lawyer had concocted the claims to extort money from her and that the defendants had damaged her "international reputation for graciousness, rectitude, honesty and thriftiness".
Mr Austen responded that "it wasn't bad enough that she assaulted my client with her car, now she assaulted my client and me with this lawsuit". The court later threw out Ms Stewart's case.
In another action the record company CBS sued the rock group Boston and its leader, Tom Scholz, for breach of contract. Mr Scholz counterclaimed, hiring Donald Engel, to protect his interests. While the lawsuit was pending Mr Engel negotiated a favourable contract for Boston with MCA. CBS brought a second action against Mr Scholz, MCA and Mr Engel, alleging breach of contract and copyright infringement based on the MCA deal.
CBS's president testified that he had sued Mr Engel in the second case to undermine the lawyer's position and put him in a conflict of interest position in the hope that he would withdraw from representing his client. But Mr Engel stayed the course, the court ultimately dismissed the case against him and awarded Mr Scholz $6.5 million against CBS.
A lawyer should not be immune from suit. But lawyers need also to be wary of attacks aimed at the client - or justice will suffer. Meanwhile, in Britain barristers' immunity may not survive for much longer. A European Court of Human Rights ruling has already knocked a hole in police immunity; when the Human Rights Act comes into force the Bar's protection against lawsuits may go the same way.
