Eric Turkewitz is a New York trial attorney, by all accounts a terrific lawyer, by the evidence of his writing an ethical and astute one, in our brief encounters a very nice guy, and the proprietor of “The New York Personal Injury Law Blog.” In a recent post, he defends the decision of Jennifer Connell to sue her young nephew for a four-year old injury she received when he hugged her too enthusiastically at her birthday party. He notes, correctly, that the decision to sue was based on the client accepting a “bad call” by her lawyer. He also includes a lot of information not mentioned in the early posts on the matter, including mine. Still, he defends Connell. He also specifically criticizes my post. Eric writes,
“What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.”
This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report. This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued.
Yes, I “actually teach ethics,” and I could, in fact, teach Eric some things that he would find useful and enlightening. I’m not going to get in a pissing match with him, in part because, as I learned from another tiff four years ago (in which I was wrong, and duly apologized), he has some very, very nasty pals, and I don’t want to throw blood in the water. This is, however, an excellent example of how lawyers often end up seeing the world, and in fact I may use his post, unattributed, in seminars to show where legal ethics and ethics diverge. It is wise for lawyers to be atuned to both.
Here was the response I made to Eric on his blog:I’ll stand on my analysis, Eric. I don’t care why she sued her nephew when it was—I will say obviously—a cruel and venal thing to do. At best it was stretch of a negligence claim, and balancing interests and harm, and awful call to put the child through that, or to have a kid’s recently departed mother’s sister—I wonder if she was his godmother too?—appear to turn against him in what must have been a bewildering encounter. You say you wouldn’t have taken the case, which doesn’t surprise me. Still, I don’t blame the lawyer, unless he didn’t tell his client enough to make a better decision than she did.
Everyone keeps saying that the Aunt Had to sue the child. No, she didn’t. She only had to sue the child if she cared more about the money than she did about the kid, and has adopted the theory, understandably popular with trial lawyers,but not so much with aunts, that every accident has to be somebody’s fault.
Your argument is, essentially, that “everybody does it” (I don’t think anyone has sued the 8-year old driver of a car, though.) Well, that’s not an ethical argument. That’s a rationalization. The post wasn’t about legal ethics, because the lawyer, as I said, didn’t do anything wrong: the child was just another defendant to him. This is family ethics. The fact that the child is still willing to trust the aunt is moral luck, and proves nothing relevant to the decision to sue.
One of the things I teach in legal ethics seminars is that just because the Rules say you can do something doesn’t mean its the right thing to do, or that the harm you bring on your client’s adversary is necessarily fair or right. (There’s a famous Abe Lincoln letter to a potential client on this topic that is often taught in law schools, as you probably know.
I didn’t bring in the insurance issue, which I thought might bein there, because in terms of how a trusted adult treats a child in the family, it doesn’t matter.
I concede your point that “hellspawn” was over the top. But she’s an awful aunt.
Let me elaborate. Eric’s arguments for why the aunt was not doing anything unethical were the following:
“But suing relatives (or close friends) happens all the time…”
This is, of course, just the biggest rationalization of all. I have heard, almost in every class, experienced lawyers use this to justify legally unethical conduct, or conduct that the rules of the profession barely permit but that are obviously unethical.
“…particularly in auto collisions. Who, after all, are you most likely to be with at the time of a collision? A close friend or relative. Unless you drive a taxi, you don’t often have strangers in your car.”
As I alluded in my response, I never heard of a passenger suing any 8-year old driver. It’s a bad analogy, and Eric is smart lawyer: if there’s one that actually applies, he should use that, not this. The entire ethics issue is based on the fact that this was a young boy, and the plaintiff’s nephew. Eric also fails to mention that the mother waited until his mother had died to bring this lawsuit, and that the accident occurred at the child’s birthday party. I’m sure he feels these are irrelevant, as they may be, to the legal ethics issues. I guarantee that the jury didn’t think they were irrelevant. but juries haven’t had their sense of right and wrong altered (Warped? Mutated?) by practicing law. Eric’s post also didn’t mention that aunt’s testimony that among her justifications for the lawsuit was the fact that she couldn’t hold little dishes of yummies at parties.
“…the woman testified that she remains close with the family and recently took the boy (now 12) shopping for a Halloween costume.”
Classic consequentialism. Her decision to sue must be judged only by the condition and facts at the time of the lawsuit. It wouldn’t have made her decision retroactively unethical if the child ended up hating her guts—as he should, and I would—and the fact that he still associates with her now doesn’t make what she did harmless or right. (I bet he’s not going to hugging her any time soon.)
Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind
Ugh. Rationalization #22, the worst of the worst. The fact that Eric has suffered through traumatic laws suits doesn’t change the unethical nature of this one, and wouldn’t even if he were 8 years old.
As for my part, just as the fact that the child’s mother had died was irrelevant to Eric (and presumably The Bad Aunt’s lawyer), the fact that this unconscionable law suit arose from an insurance dispute is irrelevant to judging the ethics of her decision to sue. It doesn’t matter why she decided to sue the child. She shouldn’t have done it, and it was wrong.
In summary, Eric didn’t make his case, just as the Aunt failed to make hers.
This is a good time, I think, to republish Abe Lincoln’s famous letter rejecting a client who wanted to sue a widow for $600. I’ve criticized the letter as a poor example of legal ethics, but it is an excellent example of human ethics. I expect an aunt to behave like a loving family member, not like a lawyer.
“Yes, there is no reasonable doubt but that I can gain your case for you. I can set a whole neighborhood at loggerheads; I can distress a widowed mother and her six fatherless children, and thereby get for you six hundred dollars, which rightfully belongs, it appears to me, as much to them as it does to you. I shall not take your case, but will give a little advice for nothing. You seem a sprightly, energetic man. I would advise you to try your hand at making six hundred dollars in some other way.”
ADDENDUM 1: I forgot to mention that a primary difference between how a lawyer assesses his ethical duty and how the client should have in this case is where loyalties lie. A lawyer is bound to be loyal to his client. Lawyers engage in a ethics violation when they have competing loyalties in the same matter. Eric could not, for example, help a client sue Eric’s own child without a a waiver of the conflict. An aunt’s primary duty of loyalty should be to the welfare of children who are blood relatives and who trust her, regardless of what legal advice she gets advising otherwise.
And ethical lawyers should know this.
ADDENDUM 2: Eureka! I just realized that Eric, and the aunt, have handed the Ethics Alarms Rationalizations list a new and major rationalization! It will be called “Tessio’s Excuse,” and I’ll post it after I get back from a CLE ethics seminar. See if you can guess what it is. I bet several of you can.