Yes, many lawyers will take on losing cases, so long as they are not contingency fee cases.
But it is not quite that simple.
Let us explain.
Will A Lawyer Take A Losing Case? (EXPLAINED)
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There is no specific rule that states that every attorney must take on specific cases, or reject others.
There’s also no requirement that the case be what we’d call a ‘winner.’
Or that the case be a ‘winner’ to be accepted.
In general, the attorney must have valid reasons to accept a case, or to reject the case.
And the definition of “valid” in this context is quite broad.
Loser Criminal Cases
People are obsessed with whether a case was “won” or “lost.”
But outcomes in the law are rarely so easily sorted.
As a criminal defense attorney, I was regularly retained in cases where the evidence clearly demonstrated from the beginning that the client has committed the acts alleged.
The case, from beginning to end, would be considered a “loser.”
But as a defense attorney, trying to win is only one of my jobs.
Helping the client navigate the justice system, regardless of the evidence, was one of my jobs.
Helping the client understand what was happening to him, at every stage in the case, was one of my jobs.
Helping the client obtain the evidence he was entitled to as a defendant in a criminal case in the United States was one of my jobs.
If criminal defense attorneys only helped people whose cases could be won, then very few people in the criminal justice system would receive the effective assistance of counsel guaranteed to them as their right as a citizen in the United States.
Loser Contingent Cases
Attorneys rarely accept cases on a contingent fee if they do not believe that they can recover fees for their time invested.
If a client was to come to the office with a contingent fee cases that was obviously a loser, the attorney would probably not even meet with the client.
The client would probably get a referral to another attorney who might be interested in digging into the matter to see if the case would be made a bit shinier.
In some instances, a firm might agree to represent a client first on an hourly basis with a retainer, and then convert the case later into a contingency fee arrangement if evidence was uncovered to improve the case.
Loser Hourly Cases
Attorneys regularly accept cases on an hourly basis even though the case is not likely to result in a positive jury verdict.
This is not unethical.
There are many things an attorney can do to help a client who is in a losing case.
The attorney could ethically:
- investigate the case to see if the case could be improved
- try to settle the case to get the client out of the situation without spending too much more money
- assist the client who intends to take the case all the way to the end to make the case go as smoothly as possible legally
- advise the client on the outcomes of the case
- facilitate discovery
- take the case to trial to try and reduce the overall financial damage to the client
While rules in various states might differ, I think that attorneys who take on cases that look bad have the obligation, before taking any money, to:
- give their honest assessment of the case to the potential client. This means telling them straight up that the case is bad.
- provide a roadmap for what can be done for the client. This means being really clear about expectations of the attorney and what they attorney will actually do in the situation.
- put the attorney’s assessment in writing, and have the client sign off on it. This will prevent the client from suing the attorney’s liability insurance at a later date for the lost case.
The attorney definitely needs to also communicate regularly in writing with the client about the poor state of the case, and how it is progressing.
And in all situations, avoid, avoid, avoid giving a rosy view of the case to the client that does not match reality.
Why Do Attorneys Accept Loser Cases?
Working loser cases is not always that fun.
But people who have losing cases need as much help as people with winning cases.
And in the end, attorneys have families and children who need to eat.
Should Attorneys Accept Loser Cases?
If the client has money and the other red flags of a bad client are not present, then why not?
It is not unethical to help a client in a bad situation.
If anything, it is the duty of attorneys, to the best of their abilities, to assist clients through the worst of times.
It is only unethical to misrepresent things to the client in order to get the client to pay the attorney money to assist him.
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