The Costs of the Vexatious Lawyer: Who Bears Responsibility?

Abstract

This Article investigates how the law should respond to a lawyer who engages in unprofessional, tormenting, or what is often referred to as “vexatious” conduct during litigation.  At present, a federal law – 28 U.S.C. §1927 – allows courts to issue sanctions upon a vexatious lawyer. 

When such a lawyer works for a law firm, a deep split has emerged among the circuits.  Some courts have ruled that law firms may also be liable for their lawyers’ actions under the statute.  Other circuits, though, have concluded that law firms are free from this type of vicarious liability.

Unfortunately, the problem with this debate is that by only focusing on law firm liability, a universe of entities – nongovernmental organizations, corporations, nonprofits, law school clinics, and the like – are disappeared from the dialogue.  Moreover, even when examining law firms alone, there is often an assumed homogeneity in how they are treated.  As a result, other key considerations have not been thoughtfully addressed to date.  

Therefore, as this Article argues, once there has been careful reflection, several reasons arise for why the law ought to refrain from assigning financial responsibility to an organization that employs a vexatious lawyer.  First, holding an organization liable may not align with the principle of proportionality and can lead to lesser resourced entities scaling back or even shuttering operations, which could have devastating ramifications for clients seeking representation.

Second, the imposition of collective punishment could also discourage whistleblowing and greater transparency, with unethical behavior potentially going unchecked.  Third, vicarious liability could cause financial and reputational damage to innocent parties for actions undertaken beyond their control.  Finally, holding an entire organization liable for the conduct of one lawyer undermines a foundational tenet of the bar’s professional responsibility rules – namely, personal accountability – and thereby dilutes the consequences that the individual wrongdoer deserves to face.

Ultimately, an irony exists here: those supporting organizational liability often do so out of a noble desire for attaining a utilitarian form of justice.  However, this advocacy can actually have detrimental implications both for clients and causes that are all too frequently marginalized in today’s political environment.

Keywords: Legal Profession, Legal Ethics, Vexatious Lawyering, Law Firms