Chapter RPC Pertaining

• Jurisdiction: Washington

II. RPC PERTAININg TO ADVOCACY

In this section, we discuss a number of the RPC applicable to attorney advocacy in the litigation context, principally RPC 3.1-3.2, RPC 3.4-3.6, 3.8-3.9, and 4.2-4.4. RPC 3.3, on attorney candor, is for the most part covered in Chapter 10, and RPC 3.7, on the lawyer as witness, is covered in Chapter 7 on conflicts of interest.

A. RPC 3.1, 3.4(d): Frivolous Positions

RPC 3.1 and 3.4(d) are taken without change from the Model Rules of Professional Conduct (MRPC) of the American Bar Association (ABA). RPC 3.1 prohibits a lawyer from bringing or defending a proceeding, or asserting or controverting an issue in any proceeding, absent "a basis in law and fact for doing so that is not frivolous ...." The rule carefully makes an exception for "good faith" arguments for a change in law. It also makes clear that criminal defense attorneys are entitled to require the prosecution to establish every element of the case. RPC 3.4(d) prohibits a lawyer from making a frivolous discovery request. The preceding ethical code, the 1972 Code of Professional Responsibility (CPR), prohibited a lawyer from taking action "when he knows or ... it is obvious that such actions would serve merely to harass or maliciously injure another."²

Section 110(3) of the Restatement of the Law Governing Lawyers carries over the language of the ABA model rule verbatim and adds only that a lawyer may also not "intentionally fail otherwise to comply with applicable procedural requirements concerning discovery."³ That language would surely be encompassed by RPC 3.4(d), so the difference is immaterial.

What is a "frivolous" position? The commentary to RPC 3.1 explains that a position is not frivolous just because "the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery."⁴ Nor does a lawyer need to believe the client's position will prevail.⁵ 5 The action is frivolous, however, if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law.⁶ Thus, lawyers are required to become informed "about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions."⁷

Is the test for a frivolous action an "objective" one that depends upon what a reasonable lawyer would understand or a "subjective" one that turns on the lawyer's state of mind? The 1972 CPR rule, superseded in 1986, applied only if the lawyer "knows or when it is obvious that the litigation is frivolous."⁸ The language in MRPC 3.1, adopted in Washington, was intended to make the test an objective one.⁹ This was made even clearer in the new version of RPC 3.1, from which "subjective" language found in the prior ABA comment to MRPC 3.1 has been deleted.¹⁰ 10 Similarly, the comments to the Restatement say "[a] frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it."¹¹

A good-faith argument for a change in the law is not frivolous under the rule. Neither the RPC nor the commentary makes clear whether a lawyer must characterize an argument as one for a change in the law in order to come within this exception. The same issue arises under CR 11, and the courts are split on the issue in connection with that rule.¹² But if there is authority in the jurisdiction directly adverse to the position asserted, it must be disclosed under RPC 3.3(a)(3). The Restatement takes the position that as long as the lawyer has adequately referred to the relevant authority, it does not matter whether the argument has been characterized as one for change in the law.¹³

A criminal defense lawyer is entitled to put the state to its burden of establishing every element beyond a reasonable doubt, even when the lawyer knows that the client has no defense.¹⁴ But this does not mean that the lawyer may take a frivolous position, either at trial or on appeal.¹⁵ If defense counsel concludes that there is no nonfrivolous ground for appeal, a so-called "Anders" brief may nonetheless be required, as a matter of constitutional law, explaining that counsel believes any appeal to be frivolous but detailing anything in the record that might arguably support an appeal.¹⁶

Discipline is rarely imposed solely on the basis of frivolous claims,¹⁷ but frivolous claims are sometimes seen as part of a larger package of misconduct leading to serious discipline. In In re Talbot,^18. for example, attorney Talbot was disbarred in part because of a third-party complaint he filed when representing a civil defendant. The court agreed with the hearing officer that the third-party complaint was "frivolous and done solely to harass or annoy the plaintiff and its attorneys"^19. in violation of DR 7-102(A)(1), the predecessor to RPC 3.1. And in In re Lovell,^20. a lawyer was suspended for three months in part for filing a frivolous claim against a bank. The heavy lifting with regard to frivolous claims is now done through enforcement of the superior court rules, such as CR 11 and CR 26, which are discussed in Section III., below.^21.

B. RPC 3.2, 3.4(d), 4.4: Delay

RPC 3.2, 3.4(d), and 4.4 are all taken verbatim from the ABA model rules. RPC 3.2, in its entirety, states that "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." RPC 3.4(d) similarly requires a "reasonably diligent effort to comply with a legally proper discovery request by an opposing party." RPC 4.4 prohibits a lawyer from using "means that have no substantial purpose other than to ... delay ... a third person." The 1972 CPR prohibited a lawyer from "delay[ing] a trial ... when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."²² It also stated that it did not violate the duty of zealous advocacy for a lawyer to be "punctual in fulfilling all professional commitments."²³ The Restatement does not devote a separate section to the problem of delay of litigation, but instead addresses it as an aspect of frivolous discovery practice²⁴ and as a type of prohibited dealing with third persons.²⁵

A lawyer may introduce delay into litigation intentionally or through negligence. The language of RPC 3.2 is broad enough to reach negligent delay as well as intentional delay. But RPC 3.2 has as its principal focus intentional delays in litigation, whereas RPC 1.3 is broader in scope, requiring a lawyer to act with "reasonable diligence and promptness" in any representation. In principle, most violations of RPC 3.2 also violate RPC 1.3,²⁶ but RPC 1.3 is more commonly invoked for neglect or delays outside of an adversarial litigation context, whereas RPC 3.2 is reserved for intentionally dilatory litigation conduct.²⁷ This is the distinction we have chosen to follow here. The reader is referred to the discussion of RPC 1.3 in Section III. of Chapter 5 of this book for additional discussion and examples of neglect of legal matters.²⁸

Intentional delay may occur because it is in the client's interests or because it is in the lawyer's interests. All too frequently, lawyers seek continuances or postponements or extensions of time because they have conflicting obligations rather than because it is in the interest of their client. The language of RPC 3.2 makes it clear that there is an affirmative duty to make "reasonable efforts ... consistent with the interests of the client," sending the unmistakable message that delay solely for the convenience of the lawyer is not permitted. The commentary softens this message a bit, however, by stating, in language added by the ABA in 2002, "[a]lthough there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates."²⁹ So it now appears that it all comes down to whether a lawyer's delays for personal reasons are "occasional" or "routine."

The remaining puzzle is how to understand what is in the interests of the client. It is easy enough to understand that legitimate client needs may require additional time. But what of a client with a weak position who can afford to draw out a lawsuit, hoping to wear down or extract a settlement from an opponent who is incurring legal or living expenses because of the delay? Clearly, it is often in the best interests of a client to engage in delay for these reasons. The black-letter words of the rule ("consistent with the interests of the client") seem to countenance such delay. But the commentary makes it clear that this was not the intent: "The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client."³⁰ The Restatement comments add, as an example, that "delaying a trial solely to permit a client to extract a nuisance-value settlement is an improper purpose."³¹

As a practical matter, there are not many disciplinary decisions that invoke RPC 3.2. We have found four Washington cases in which the court concluded that the rule had been violated.³² Perhaps the most dramatic was the case of attorney DeRuiz, who received two consecutive six-month suspensions for three violations of RPC 3.2 in connection with three different cases (and for other violations). Several other disciplinary cases, decided before the RPC were adopted, would seem to address violations of the pre-RPC rules designed to expedite litigation.³³ As with RPC 3.1, we speculate that CR 11 and 26 have been found to be more potent enforcement...