responsibility. See Pillsbury, "The Legal Relations Between Bench and Bar," 32 Am L Rev 161, 183 (Mar-Apr 1898); Shawcross, "Functions and Responsibilities of an Advocate," 13 Rec Ass'n Bar City NY 483 (1958); Fales, Introduction to Will the ABA Draft Model Rules of Professional Conduct Change the Concept of the Lawyer's Role? (Ass'n Bar City NY 1981). The purpose of the legal system is to promote "the convenience of the lay people who sue and are sued." F. Pollock to O.W. Holmes, 1 Holmes-Pollock Letters 8 (Howe ed 1961).
The independence of the Bar can only be maintained, and our adversary system can only work so as to yield the "just, speedy and inexpensive" determination of cases as called for by Fed.R.Civ.P. 1, if responsibility is exercised by all participants. Absence of such exercise cannot properly be rewarded at the expense of others.
Granting counsel a lien on any settlement or judgment does not interfere directly with ongoing steps in a litigation as does a lien on case files (discussed in part IV below), but can nevertheless have adverse impact on the client. Such a lien may prevent a plaintiff from obtaining any proceeds until a potentially lengthy legal fee dispute is fully adjudicated. Courts should be mindful of the rights of members of the Bar to recompense for their efforts but also of the need to protect lay citizens from oppressive behavior. See generally Stone, "The Public Influence of the Bar," 48 Harv L Rev 1 (1934).
Summary judgment was granted in the present case in favor of six (6) defendants by means of adoption of a detailed Report and Recommendation by a United States Magistrate Judge which effectively demonstrated the lack of merit of those claims. A large proportion of the litigation expenses incurred on behalf of plaintiff to date were necessarily incurred in connection with the unsuccessful attempt to pursue those six defendants. Relatively little cost would have been incurred to date in pursuing the alleged direct wrongdoer (Ryan), who did not engage in the complex motion practice which doubtless generated most of the expense incurred by plaintiff to date.
To grant Shaw a charge against any recovery from Ryan based on the unsuccessful claims pursued by counsel on plaintiff's behalf against the other six defendants would reward the irresponsible practice of suing almost anyone with any connection to an incident whether or not there is articulated a reasonable legal basis for so doing.
Such encouragement would run counter to the goals of Fed.R.Civ.P. 1 (the "just, speedy and inexpensive" determination of every action). The 1993 amendments to Rule 1 direct that all Civil Rules be "administered" as well as "construed" to seek that objective.
One of the original objectives of the 1983 amendments to Fed.R.Civ.P. 11 was to discourage scattergun lawsuits seeking to rope in all possible defendants however remotely involved in an event. The later 1993 amendments to Rule 11 and Stern v. Leucadia National Corp, 844 F.2d 997, 1005-06 (2d Cir 1988), discourage imposition of monetary and other sanctions under the Rule where conduct does not "reach the point of clear abuse . . ." See also Riddick v. Summit House, 835 F. Supp. 137, 146-47 (SDNY 1993).
A response to shotgun inclusion of remote parties in litigation, which is perhaps far more appropriate than consideration of formal sanctions, is to insure that it does not benefit those engaging in the practice. Here, the unnecessary pursuit of defendants with a marginal connection to the event necessarily rests on counsel's judgment and cannot be laid at the feet of a lay litigant. Even if a client seeks to insist on questionable contentions in a lawsuit, an attorney has the professional obligation to the client, the court and the adversaries to insure that only appropriate steps are taken.
Shaw chose to pursue what in substance were two separate lawsuits under the same caption. The case against Ryan has required little legal expenditure to date and is still pending. The more intensively litigated case requiring greater expense was pursued against six (6) peripheral defendants who have obtained summary judgments in their favor, and quite possibly were pursued because some had potentially deeper pockets. Treating these two prongs of the case as separate suits protects the natural person plaintiff here from being required to pay for the unsupported high-stakes gamble chosen by counsel.
The problem with the gamble, of course, is that Shaw was not the only one putting up the stakes: involuntary stakes belonging to others, including the plaintiff and the defendants now released from the case, were on the table. The plaintiff, whose position would be affected by Shaw's application if successful, is a natural person without known prior background concerning legal matters or litigation,
and who necessarily acted on Shaw's advice.
Courts are necessarily vigilant to avoid the appearance or reality of overreaching in such situations involving an uneven gradient of knowledge and decisionmaking role.
Shaw may pursue his request for a lien on any settlement or judgment in this case only by filing sufficient evidence to separate any costs or fees incurred solely or primarily in connection with claims against Ryan.
Apart from the problems raised by Shaw's request for a lien on any settlement or judgment in favor of plaintiff in her suit against Ryan, further difficulties are presented by Shaw's request for a lien on plaintiff's case files. In one sense this application is premature and may properly be denied as moot because Shaw has not been released as counsel at this juncture. On the other hand, efforts to secure other counsel for plaintiff are likely to be chilled if new counsel would be likely to have to await resolution of a fee dispute between Shaw and plaintiff before being able to obtain Shaw's files concerning plaintiff's case.
Applications for liens on case files until a legal fee dispute is resolved have been denied where such action has a potential for substantially delaying litigation, contrary to the goals set forth in Fed.R.Civ.P. 1. See Misek-Falkoff v. IBM, 829 F. Supp. 660, 663-64 (SDNY 1993).
Neither an unsigned motion nor timing of such a motion to coincide with dismissal of all but one defendant from the case tend to suggest that the attorney's claim against the client has sufficient merit to overcome the adverse impact on plaintiff's remaining claims against Ryan, particularly after counsel's delay as discussed above.
A motion for reargument or for additional time to move for reargument should describe at least some potential grounds for reconsideration of the original decision. This has not been done.
Local Civil Rule 3(j) provides:
A notice of motion for reargument shall be served within ten (10) days after the docketing of the court's determination . . . There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.