The courts and the justice system are based on the idea that justice should be fair and even-handed. It should be based on the facts of the case, not on some lawyer’s personal or professional ambitions.
That was the argument a California professor recently made when she filed a $24 million legal malpractice suit against a big law firm. According to Bloomberg Law, the firm was supposed to review her discrimination and harassment complaint as a neutral third party. However, the professor claimed the law firm failed to do so. Instead, she alleges the firm conducted a one-sided discovery, motivated by a desire to gain future work from the state and other large employers.
In its article, Bloomberg Law doesn’t cover all the details of the professor’s suit. Nonetheless, it’s clear the professor thought the big law firm was supposed to act neutrally and failed to do so. The California Rules of Professional Conduct cover such behavior under Rule 2.4, “Lawyer as Third-Party Neutral.”
As the State Bar notes, this rule applies to lawyers who help resolve conflicts between two or more parties, serving as counsel for neither party. The rule mostly identifies the circumstances of this arrangement and demands that the attorney or attorneys inform the parties of their neutrality. It does, however, note that lawyers serving in this way must follow the rules of the court or other laws that govern the action.
In other words, if the big law firm attorneys were serving as arbiters under the 2020 California Rules of Court, they would need to follow the standards for “General Duty”:
- Maintain the integrity of the arbitration process
- Act without bias toward or against any participant
If the big law firm attorneys were serving as arbiters under these rules, a show of bias could easily be grounds for a legal malpractice suit. The lawyers should know they need to investigate the facts without bias, and their failure to do so could bring real harm to one or the other sides. In fact, an arbiter who shows a bias toward one party is almost certain to harm the other. The question of malpractice then becomes whether the injured side could have fared better with a fair and impartial arbiter.
The rules exist to protect you
As noted on its site, the California State Bar exists to protect the public. The customer. You. The State Bar writes and enforces its rules to ensure that everyone who seeks justice can get it.
You’re not entitled to victory, but you are entitled to a fair and impartial process. When an attorney denies you that chance, you may have a case.