Among the things you hear lawyers saying about themselves, “I’m not very good at law” and “I’ve no assets beyond my clothes and my wedding ring” do not crop up often. Yet that is what James Gordon Banks, an Illinois lawyer, told a court recently. He had been found personally liable to pay the costs of an opposing attorney after deliberately expanding a civil action with vexatious allegations.

The lawyer on lawyer dispute arose in a case about a drivers’ union election. The losers of the election, represented by Banks, sued the winners alleging that the result was fixed through racketeering. Those allegations soon proved to be unfounded. During the case, the defendants’ lawyers had written to Banks, demanding that his unwarranted claims be withdrawn. But Banks did not withdraw the claims and did not even reply. He continued to bully the defendants.

Once the defendants had won the case, their lawyers applied to have their costs paid by Banks, arguing that they had had to do lots of unnecessary work because of his vexatious claims. The district court agreed and told Banks to pay the other side’s lawyers $80,000 as that represented reasonable attorney fees for the amount of unnecessary work they had had to do. Banks said that he could not pay that sum and invited the court to reduce the award against him, pleading that his assets were very limited: $2,000 in cash, a watch, his clothes and his wedding ring.

The seventh circuit Court of Appeals has just ruled that Banks must pay the $80,000. It reasoned that as he had committed an intentional tort when he maliciously expanded the litigation, the trial court was not bound to examine his personal assets before deciding on the level of compensation to be paid to his victim. It ruled that the sum of damages should depend “on the victim’s loss, not the wrongdoer’s resources”. The court was clear about just how wrong Banks had been in bringing the actions against the winner of the union election: “Instead of hitting [the defendant] with a fist or an insult, [Banks] hit him with a lawsuit.”

The court also noted that Banks did seem to enjoy a home, cars and savings but these were all in his wife’s name. The ruling suggests that if paying the $80,000 would be too much for Banks he should file for bankruptcy. The bankruptcy court could then examine whether he had engaged in any fraudulent conveyances of property in order to hide his assets.

Banks tried to excuse himself by saying he was not great at law and had only four years post-qualification experience. But the court was not sympathetic. It declared “If Banks really is a bad lawyer (as he depicts himself), and is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavour where he will do less harm”.

In the United States, lawyers who are aggressive to clients have periodically been condemned. In Ohio, a lawyer was reprimanded by the state Supreme Court for screaming obscenities at the clients of his adversary attorney and referring in writing to opposition witnesses in terms such as “sh*thead PhD”. The final straw came when he started sending back witness statements and letters which he had marked with obscene two-word phrases, using a rubber stamp.

Professor Gary Slapper is Director of the Centre for Law at the Open University

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