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Abusive Litigation Tactics

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I must preface this entry and my remarks by saying that my source of information comes exclusively from a newspaper account and by briefly reviewing a judge’s order known as a minute entry. However, the facts in the newspaper story and in the judge’s discussion of the events have led me to point to this recent case as an example of conduct which gives our profession a bad name. A Maricopa County Superior Court Judge recently chastised a lawyer in the valley for engaging in abusive and unwarranted unprofessional tactics. The legal dispute centered around a foreclosure lawsuit filed on behalf of a homeowner’s association against a property owner for failure to pay dues of less than $400.

By the time the case came before the judge, the dollar amount of the dispute had apparently swelled to well over $6800. According to Judge Swann, the assigned judge

Sadly, however, this case has become an example of the risk to the public of abusive litigation practices run amok. The Court is simply a forum for the resolution of disputes, not a weapon to be used to generate leveraged fee awards. After the Court indicated that there would likely be no award of fees in this case, Defendant was billed approximately $6,000 for Plaintiff’s fees. Though this billing was retracted after Ms. Mobbs brought the matter to the Court’s attention, Mr. Shaw continued to demand that she “settle” the case for $2,000.00 – more than 400% of the amount actually owed.

The Judge pointed out that throughout the nature of the litigation, the lawyer did not maintain a sense of professionalism and dignity required of our legal profession. In fact in a lletter to the homeowner who had attempted to resolve her dispute by talking directly with the homeowners association, the Judge pointed out one example of the problem tactics used by the association lawyer when that lawyer stated to the homeowner:

I HAVE WARNED YOU TIME AND TIME AGAIN NOT TO CONTACT THE BOARD OF DIRECTORS. YOU
ARE NOT THE ASSOCIATION’S ATTORNEY AND MUST REFRAIN FROM GIVING THE ASSOCIATION
ADVICE. SINCE YOU DO NOT SEEM TO UNDERSTAND THIS, I WILL SAY IT AGAIN. IF YOU
CONTACT THE ASSICIATION WITHOUT FIRST CONTACTING ME ONE MORE TIME. [sic] I WILL FILE
A MOTION WITH THE COURT TO REQUEST THAT YOU BE CENSORED. ALL COMMUNICATION GOES
THROUGH ME AND THEN I WILL PRESENT IT TO THE ASSOCIATION.

The Judge reviewed this language and concluded that the lawyer should never have made such comments because the homeowner was not bound by the same attorney professionalism rules. In short, it appears that the Judge took the lawyer to task for practicing law in a manner which could be described as harrassment and abusive. In my opinion the public perception of lawyers does not need this example to further reinforce its lack of trust in the legal profession. I am proud to practice law and firmly believe that a vast majority of attorneys practice law professionally. This exmple does not represent the majority of attorneys in our valley. What do you think? Are we too unprofessional in our quest for litigation work? What changes would you make to ensure a fair and balanced legal system? If I missed the boat and you believe the foregoing conduct is acceptable, let me know why; I will keep an open mind. Let me know your thoughts about this case and our legal profession in general.