The Bar Ethics rules should be written to encourage lawyers not to pettifog, by penalizing them for such ill advised behavior. The lawyer must tell his client that he has no case to present, rather than be allowed to continue to drag out a case and charge a client a fee, when he alone (as the hired expert) knows that the law is against his position, and thus he is really trying to "stir settled points of law" ( a rule violation) or not making a "good faith effort" to change the law, after research and much thought ( a rule violation).

The lawyer must be required to pay the adverse fee rather than the litigant, who is not presumed to know the law, nor charging someone for services based upon alleged skills and knowledge.

The litigant should not be penalized by a lack of knowledge of law, because he is paying an alleged expert for the skill. The lawyer should be responsible for the law, and the penalty for a rule violation. The actual litigant is the person who would presumably decide to settle out of court. The litigant, faced with a prospect of "loser pays" would use the courts to harass as a plaintiff, against a defendant who could neither avoid the suit, nor protect himself from the adverse fee ruling. Divorce fee determination would be by who could get to the courthouse first and thus be plaintiff.

Worse still the unfortunate litigant could be bankrupted by bad judgments, which would all carry a "loser pays fee penalty" even though the litigant were an innocent defendant, like I am. See my series -