Lawyer Files Lawsuit Without Contacting, Signing Client First

It goes without saying that in order to represent a party in court, she has to know about it, right?

Sure, it's not a hard-and-fast rule. After all, members of a certified class aren't universally notified before a suit is filed. But even then, the named plaintiffs (or class representatives) are aware of the lawsuit and have consented to representation. And the class members are given a chance to opt-out.

In one of the oddest cases we've ever heard of, a Utah attorney filed a class action lawsuit, without ever bothering to meet, contact, or obtain the consent of his so-called clients, Amy N. Fowler and Pidge Winburn. The suit, which argued that the ongoing efforts to block gay marriage were resulting in emotional distress, was filed against the State of Utah and The Church of Jesus Christ of Latter-day Saints late last month. The named plaintiffs, one of whom is an attorney, were previously featured in a front-page story on gay marriage and did not know of the lawsuit's existence before being contacted by a reporter, reports the Deseret News.

Lawyer: No Permission Needed

E. Craig Smay, the attorney behind the lawsuit, told The Salt Lake Tribune that he did not need the client's permission, and that he had explained as much to Fowler via email. He also stated that, "She can file [for dismissal] until the cows come home. She's wasting her time and she's wasting my time," and admitted that he obtained the couple's names from the newspaper article.

File she did. By Thursday evening, the lawsuit was dismissed by the court. Fowler also told the Tribune that she had filed a complaint with the state bar and that she had not received any email from Smay.

The Tribune cites multiple legal experts who all agree: you need consent (or the court's permission) to represent a client. Duh. Based on the prompt dismissal of the case, we'd guess that the court agreed as well.

One of the experts also pointed out another semi-obvious tidbit: this lawsuit is ridiculous. Smay is suing the state for appealing a court decision based on a question of unsettled law. (And the First Amendment-protected church has nothing to do with the original lawsuit.) Again, duh. Then again, are we surprised that a lawsuit, filed without the clients' consent or awareness, has questionable legal merit?

What Was He Thinking?

Your guess is as good as ours. Maybe he was hoping that no one would notice, and that he could substitute in consenting plaintiffs at a later time. He did mention, to the Tribune, that he would substitute out Fowler and Winburn "when we have someone else to substitute in." Or maybe he was hoping that he could convince the clients after-the-fact. Too bad one of them was an attorney.

Whatever his thought process was, we can't wait to see the state bar's reaction.

Related Resources:

• Lawyer says he didn't need OK of gay couple to file class action on their behalf; suit is tossed (ABA Journal)
• Our Favorite Blogging Judge Just Hung Up His Keyboard (FindLaw's Strategist Blog)
• Ohio's Text-Solicitation Opinion: What Does It Mean for Lawyers? (FindLaw's Strategist Blog)