Why Having an Attorney Who Fights Everything is Bad

In more than 25 years of practice, Greg Hill & Associates has noticed an increase in clients and potential clients  who equate an untiringly, litigious attorney with a good attorney. 

It may be due to how television portrays attorneys as using legal tactics as part of an overall strategy to annoy or harass opposing counsel for ulterior motives such as a personal grudge or just to drive up the legal expenses of another party (“to bleed them”).  While television presents this as commonplace and acceptable, we believe this type of practice should be rare and frowned upon.

We believe this is so because an attorney really is not helping his client when he merely does what his client tells the attorney to do.  In such a situation, the client is effectively practicing law by “renting” the attorney’s license and the attorney who enables this is ignoring important ethical guidelines.  Moreover, the attorney is abandoning his most important role: protecting the client from himself or herself.

Judges and ethical attorneys regard California Rules of Professional Conduct, Rule 3.1(a)(1) and (a)(2) as more important than such vexatious attorneys acting a puppets for the client apparently do.  Rule 3.1(a)(1) states that “A lawyer shall not (1) bring or continue an action, conduct a defense, assert a position in litigation, or taken an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or (2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.”

While this guideline largely applies to civil litigation, it also applies to criminal matters.  However, California Rules of Professional Conduct, Rule 3.1(b) speaks more directly to criminal defense.  It states: “A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, or involuntary commitment or confinement, may nevertheless defend the proceeding by requiring that every element of the case be established.” 

We believe this guideline should always be followed, but with an appreciation for knowing when doing so would be a disservice to the client, particularly in sentencing, if such rigor causes one to lose credibility with the jury or the judge.

We also have seen a rise in clients and potential clients who have expressed an interest in hiring an attorney merely to delay a conviction or continue a matter in hopes that a particular prosecutor will retire or be transferred or the assigned judge will retire.  California Rule of Professional Conduct, Rule 3.2, speaks directly to this: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.”

We have delayed a proceeding to allow a new law favorable to our client to become effective.  For example, in one particular marijuana case in Long Beach, Greg delayed resolution to allow Proposition 64 to become effective, allowing our client to resolve the case as a misdemeanor rather than a felony.  In another matter in the Torrance Superior Court, Greg delayed resolution of a misdemeanor case to allow judicial diversion to become effective so as to avail our client’s case to such a program.

It is rare, but sadly we have seen several clients suggest that if they retain us, we would be obligated to do anything the client dictated, including evidence destruction and witness tampering.  We simply tell the client that we are the wrong attorney for such a client, as California Rules of Court, Rule 3.4(a), states: “A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence, including a witness, or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act. . .”

This obligation includes an obligation not to suppress evidence that the attorney has a legal obligation to reveal or produce (Rule 3.4(b)), falsify evidence, counsel or assist a witness to testify falsely (Rule 3.4(c)) or advise or directly or indirectly cause a person to hide from authorities or leave the jurisdiction of the court to make himself or herself unavailable as a witness (Rule 3.4(e)), something that is commonly an issue in domestic violence cases.