In our litigious world, where attorneys are rewarded handsomely for aggressively pursuing and defending legal assaults, and where novel, creative legal arguments are hallmarks of superior advocacy, the defining edge between good lawyering and abuse of process is not always clear. As a result, the filing of untrue, unnecessary, dilatory and spurious claims or defenses is not uncommon. Attorneys are well-advised to understand the boundaries of ethical pleading.
A few years ago, a client of mine, who was about to sue his employer, warned me to be wary of the “boss’ bull—-.” He explained that the employer, who was frequently sued, typically defends cases by filing meritless counterclaims against the plaintiffs or by raising unprovable defenses. The employer and his attorney were also known to engage in costly and time-consuming motion practice in order to discourage and weaken adversaries. According to my client, the employer was also not above making unfounded accusations of employee theft and of other criminal and civil wrongdoing against his litigation adversaries. My client warned me to expect such a response.
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