Focus on Ethics & Civility, 1219 UTBJ, Vol. 32, No. 6. 48

Author:By Keith A. Call
Position:Vol. 32 6 Pg. 48

Focus on Ethics & Civility

Vol. 32 No. 6 Pg. 48

Utah Bar Journal

December, 2019

November, 2019

Can We Define “Frivolous”?

By Keith A. Call

During a recent commute, I was thinking about what I could write for this column. Pondering the Utah Rules of Professional Conduct – sick, I know – I thought to myself, “I wonder if there’s anything good in the threes?” So when I got to the office, I cracked open the table of contents to the Rules of Professional Conduct and saw Rule 3.1, “Meritorious Claims and Contentions.” I immediately thought of an opposing party’s recent memorandum that accused my position of being frivolous, an argument that, in turn, I thought was frivolous. I wondered, “What is ‘frivolous,’ and how can we identify it?” Here is a summary of my survey of how authorities define “frivolous.”

Rule 3.1 and Comments

Rule of Professional Conduct 3.1 provides: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

The second comment to Rule 3.1 adds the following to help define “frivolous”: • “The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.”

• Lawyers are required to “inform themselves about the facts of their clients’ cases and the applicable law.”

• A legal position “is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.”

• A legal position is frivolous “if the lawyer is unable to make a good-faith argument on the merits of the action taken” or is unable to support the action “by a good-faith argument for an extension, modification, or reversal of existing law.”

Utah R. Prof’l Conduct 3.1 cmt. 2.

An Objective Standard

Most authorities agree that the test for defining “frivolous” is an objective one. Courts have generally applied one of two objective tests. The “reasonable lawyer” test asks whether a reasonable lawyer would have made such an argument in good faith. And the “rational basis” asks whether the...

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