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ARTICLE · 12 SEPTEMBER 2018

Re-Examining The Ethics Of Removal

Reed Smith
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In the early days of the Blog, in 2009, when Bexis and Mark Herrmann were operating in relative obscurity, we posed the question whether it was ethical to remove to federal court a case that may well be non-removable and hope that opposing counsel is "asleep at the switch":

United StatesLitigation, Mediation & Arbitration
James Beck
James Beck
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In the early days of the Blog, in 2009, when Bexis and Mark Herrmann were operating in relative obscurity, we posed the question whether it was ethical to remove to federal court a case that may well be non-removable and hope that opposing counsel is "asleep at the switch":

"Heck, I'll remove it anyway. Opposing counsel may be asleep at the switch and not file a motion to remand within 30 days. If plaintiff doesn't timely move to remand, the objection to removal is waived, and my case can be tried to judgment in federal court."

Is that ethical?

We received one response, which we discussed, that an:

attorneys' first obligation should be to the integrity of the legal system, and not to their clients' interests. Even so, I'm not sure I'd say 'no' to either question, given that a yes answer means that incompetent attorneys who don't realize they are violating the rules would have an advantage over competent attorneys.

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