CHAPTER 2 - 2-1 FRIVOLOUS CLAIMS

• Jurisdiction: United States

2-1 Frivolous Claims

A lawyer may not make a claim in a tribunal that is frivolous or for which there is no good faith basis in fact or law.¹ A claim is not frivolous if it argues for a good faith extension, modification or reversal of existing law.² A lawyer also may not make frivolous discovery requests.³ The test is an objective one, and the lawyer is judged by a standard of what a "reasonable attorney" would have done.⁴

In matters dealing with client duties, such as conflicts, courts often defer to lawyers' decisions and interpretations concerning the ethical propriety of their conduct.⁵ But courts are quick to engage in an examination of the lawyer's conduct when the duty is an institutional one. Lawyers owe a duty not just to their clients but also to the system in which they work. Connecticut lawyers are admitted as both attorneys and as commissioners of the superior court.⁶ The process of lawyer discipline exists, first and foremost, to protect the institution of the courts.⁷ Courts are quick to act when the conduct in question has institutional implications.

Rule 3.1 is the ethics version of Federal Rule of Civil Procedure 11⁸ and Practice Book § 1-25,⁹ which address frivolous pleadings and claims as a matter of civil procedure. Rule 11 sanctions can range from collegial to severe.¹⁰ Practice Book § 1-25 sanctions can include fines, costs, payment of opposing parties' attorney's fees and orders restraining further filing of pleadings. While Practice Book § 4-2(b)¹¹ contains a requirement similar to Rule 11 that an attorney signing a pleading is certifying that he has made reasonable inquiry and that the matter is supported by law and fact, the rule usually does not result in reported cases of attorney discipline, probably because judges are free to impose sanctions in the litigation process and there is no need for a referral to the Grievance Committee.¹²

Frivolous claims and pleadings may result in sanctions, including dismissal, or may be treated by courts as ethics matters, with Rule 3.1 or Rule 3.3 as their focus. The increasing volume of self-represented parties caused the judicial branch to adopt Practice Book § 1-25 because though attorneys can be regulated by ethics rules, self-represented parties cannot.

One commentator identified the range of lawyers engaging in sanctionable conduct regarding the filing of baseless (or extremely strained) claims as running from tricksters to slackers to Don Quixotes to gamblers.¹³ Others may be motivated more by ideals than advantage. Some believe it their duty to give voice to their clients' contentions and beliefs, however unlikely it may be that they are true. Consider the attorney sanctioned in Statewide Grievance Committee v. Brunswick.¹⁴ There, an attorney filed a proceeding to vacate an arbitration award, claiming that the arbitrator had been guilty of fraud, corruption or undue means, language which parroted the statutory language for such proceedings. When pressed by the court as to the basis of his allegations, the only evidence he could offer was his client's statement that it had happened, double hearsay. The judge hearing the proceeding referred the lawyer to the Grievance Committee. The Grievance Committee reprimanded the lawyer for a violation of Rule 3.1.

On appeal, the lawyer argued that the duty of zealous advocacy required him to assert claims in which his client had a good faith belief and did not permit him to second guess the client or question the bona fides of the claim. Neither the trial court nor the Appellate Court found this argument persuasive. The trial court, drawing from the Restatement of Law Governing Lawyers¹⁵ and the ABA/BNA Lawyers' Manual on Professional Conduct¹⁶ found that even if the lawyer initially could rely on what his client had told him, he had both a duty to investigate and an ethical duty to withdraw from the matter when he learned that there was no proof for the allegations. The Appellate Court agreed, noting that "a critical variable in the frivolousness calculus is the evidentiary support of a given allegation."¹⁷ The Appellate Court also noted that in a contest of loyalty, a lawyer's duty to the court would have to trump his duty to his client every time.¹⁸

In addition to Brunswick, the other signal case on Rule 3.1 is O'Brien v. Superior Court.¹⁹ In O'Brien, an attorney was sanctioned for filing a post-trial motion in a criminal case asking for a judicial inquiry into how his client's e-mail communication with her divorce attorney came to be in the possession of the state's attorney and how it came to be altered. Because the attorney had not objected when the document had been offered into evidence during the trial, the court found that the attorney's claim that the document was privileged was both frivolous, in violation of Rule 3.1, and violated his duty of candor under Rule 3.3(a)(1). With regard to the claim that the document was altered, which it clearly was, the court criticized the attorney for implying that the alteration had been done by the state's attorney and for sticking to his claims even after the state's attorney filed an affidavit that he had not altered the document. In a dissent, Judge DiPentima added that she would have also found conduct prejudicial to the administration of justice because of the attorney's persistence in advancing the claims even when it appeared that the court was not buying his claims.²⁰

If there is a common thread to both Brunswick and O'Brien it appears to be that even the best of intentions can expose attorneys to sanctions if they do not step back and conduct an independent analysis of their clients' claims. In both cases, the attorneys took positions based on information provided by their clients. In both, there was some evidence to support the claims. In Brunswick there was a bill showing that a party had consulted with one of the attorney arbitrators. In O'Brien, there was clear evidence that the e-mail in question had been altered by someone. Yet in both cases the attorney wound up being sanctioned when he persisted with...