Patterico's Pontifications

11/18/2010

When Does a Lawyer Have a Duty to Check His or Her Client’s Junk?

Filed under: General — Aaron Worthing @ 6:09 am



[Guest post by Aaron Worthing; send your tips here.]

No, this has nothing to do with the last two TSA-related posts (here and here), but I couldn’t resist riffing off of them.  Consider this largely a light, funny post.

Now virtually every jurisdiction in the United States has some version of Federal Rule 11 in its rules on civil procedure.  You can read it for yourself at the link but it requires that each filing before the courts have a reasonable factual basis (among other things).  For instance, in the case I am about to discuss, the relevant jurisdiction is New Mexico.   The New Mexican version of this is Rule 1-011 NMRA, which requires the attorney to certify that “that to the best of the [attorney’s] knowledge, information and belief there is good ground to support” the legal claims.  Generally this imposes a reasonable duty to check out your clients’ factual assertions to see if they have any basis at all.

In a recently filed suit, a nursing home known as THI of New Mexico at Valle Norte claimed that the Harvey Law Firm failed in that duty.  Specifically the Harvey Law Firm sued THI in a prior case asserting that, um… well… let me let article explain:

The nursing home said the claim wasn’t adequately investigated by lawyers Dusti Harvey and Feliz Rael before they pursued action on behalf of [patient James] Tracy, who has since died. They had claimed that Valle Norte’s negligent care led to a “severe delay in treatment of priapism, resulting in loss of penis.”

Priapism is a persistent painful erection that lasts for more than four hours and is not related to sexual stimulation.

That’s right, those ED commercials aren’t kidding with those warnings.  The original suit further alleged that the man didn’t get proper treatment because the staff “treated the condition as a joke[.]”  Which is terrible.  I mean there is nothing at all funny about priapism.

But juvenile laughter aside, this sounded like a very serious claim potentially worth millions of dollars in damages.  Only there was one small problem:

The nursing home’s lawsuit against the firm said the lawyers pursued litigation “without any medical evidence to show that Mr. Tracy suffered an amputation … or that Valle Norte’s conduct had caused even a remote causal link to any penile injury.”

The lawsuit also said that despite repeated claims by the Harvey law firm that Tracy had lost his penis, before-and-after photographs demonstrate that didn’t happen.

So apparently these lawyers failed to ensure that this suit had a factual basis, by checking if the client’s, um, appendage was actually missing.

Now to be fair to the Harvey Law Firm, these are just allegations at this point.  But it would take a special breed of chutzpah to violate Federal Rule 11 (the new suit is in Federal Court)  in a suit alleging a violation of the New Mexico state equivalent (Rule 1-011 NMRA), so I lean toward believing the nursing home on this one.

And either way, the entire thing is hilarious.

Hat Tip: Above the Law who have their own funny commentary.

Update: Slight edits for early morning bad grammar.  Thanks Dustin, JRM.

[Posted and authored by Aaron Worthing.]

12 Responses to “When Does a Lawyer Have a Duty to Check His or Her Client’s Junk?”

  1. Nice post, but the usual copy-editing drifts into the headline here, and that’s jarring. “Has” should be “Have.”

    –JRM

    JRM (cd0a37)

  2. I can’t judge, thanks to my poor track record on editing.

    Dustin (b54cdc)

  3. This actual post is a little hard to comment on.

    I wonder if the lawyers have a claim against any doctors, or if they took statements from any.

    Sounds like someone was watching late night commercials and decided to sue based on the medical disclaimers from infomercials.

    Dustin (b54cdc)

  4. Dustin

    > This actual post is a little hard to comment on.

    Subtle humor there?

    > I wonder if the lawyers have a claim against any doctors, or if they took statements from any

    That’s a very good point. If the lawyers relied on the word of doctors on this point, they might be able to sue the doctors for malpractice and/or misrepresentation. So let’s say the nursing home gets $40K from the firm. then the firm convinces the judge that the fault lies actually in the doctors who misled them, and the court could reasonably conclude that the lawyers were reasonable in relying on the doctors and make the doctors pay the full judgment of $40K.

    Or, the court might say to the lawyers, “however badly the doctors screwed up or lied to you, you still had a duty to check for yourself.” i mean if the issue was something beyond the medical expertise of the average lawyer, that is one thing. But this is about whether a body part was there or not.

    I think the courts are most likely to say that a lawyer doesn’t have a duty to, um, see for themselves, if only because they don’t want to mandate a further invasion of privacy.

    And on top of it all, if the client lied to the lawyers, that might allow them to sue the client to recover the costs they lost in this judgment. I am frankly unsure how the fact he died affects this, but certainly if he was alive, they could sue him for misleading them.

    Aaron Worthing (e7d72e)

  5. If the lawyers relied on a medical report, I think they will be in compliance with Rule 11. I suspect there was a misinterpretation of some medical terms, something like medical jargon meaning “loss of use” being interpreted as “loss of penis.” In that case, the lawyers may be in trouble. Just speculation though.

    mbs (609a39)

  6. Lawyers in trouble….
    and the down-side is???

    AD-RtR/OS! (a60876)

  7. When the client is HOT!

    Torquemada (a8a9b2)

  8. Torq

    i will direct you to the state rules of professional conduct in regards to sexual harassment. 🙂

    Aaron Worthing (e7d72e)

  9. I’d like to know what the actual threshold for compliance with Rule 11 is. From my experience, an attorney could claim that his client looked him directly in the eye while spinning his complaint and that would be enough to keep the attorney out of hot water.

    I don’t think there’s any requirement that a lawyer ask to speak to other witnesses before filing a suit. You attorneys out there know otherwise?

    spongeworthy (c2e8fe)

  10. #8 Harraswhatmeant?

    Torquemada (a8a9b2)

  11. Well, I suppose that I may be, as the Above the Law writer put it, “a skilled penis tort litigator,” if trying one such case to a conclusion counts. I joined other counsel just on the brink of trial, and did not personally view my client’s junk, but there were photos.

    It made for a very challenging voir dire examination that was unique in my own experience, anyway. I’m sure that if the trial proceedings had been transcribed, there would have been very few pages which did not, somewhere, include the word “penis.” Yet everyone even remotely involved in the case pretended that there was nothing unusual or funny going on, at least while they were inside the courtroom: There was never a snicker or a giggle, nor even a smirk — not from anyone.

    But I suspect that 99% of those same folks, when not in public, shared private jokes. For empathetic men and sympathetic women both, jokes sometimes become a defense mechanism when we’re dealing with something horrific to contemplate.

    Beldar (85e89d)

  12. I also cannot help but be reminded of the famous and quite rude lawyer joke:

    Q: Why do male lawyers have to wear neckties in court?

    A: To keep their foreskins from crawling up their chins.

    I’m sorry for the image that may leave you with, and some things just can’t be un-imagined.

    Beldar (85e89d)


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