II. The Ethical Prohibition Against Pursuing Frivolous Claims and Lawyers' Duty to Investigate

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. The Ethical Prohibition Against Pursuing Frivolous Claims and Lawyers' Duty to Investigate

Rules of professional conduct in almost every jurisdiction contain a prohibition against the pursuit of fatally deficient claims and contentions patterned after Model Rule of Professional Conduct 3.1. Model Rule 3.1, which is titled "Meritorious Claims and Contentions," 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.¹

In addition to its obvious application to traditional client representations, Model Rule 3.1 applies to lawyers who represent themselves.²

It is worth noting at the outset that although Model Rule 3.1's title speaks of claims and contentions that are "meritorious," the text of the rule does not actually require lawyers to only pursue meritorious claims and contentions. Such a standard would be nearly impossible to enforce given the many factual and legal ambiguities that routinely exist in litigation. Plus, even where the law is clear, there is always the potential for change. Accordingly, Model Rule 3.1 takes the more realistic approach of prohibiting lawyers from pursuing claims and contentions unless they have "a basis in law and fact for doing so that is not frivolous."³ In other words, a claim or contention may be meritless without being frivolous.⁴ While Model Rule 3.1 does not attempt to define the term "frivolous," it does provide significant guidance on the topic of legal arguments by spelling out a few examples of conduct or practice that satisfy the "not frivolous" standard of the rule; namely, good faith arguments for extensions of existing law, good faith arguments for modifications of existing law, and good faith arguments for reversing existing law.⁵

A reliable definition of what constitutes a frivolous claim or contention with substantial currency across the nation, and that seems to apply as readily to evaluating underlying factual assertions as to legal arguments, is found in the Restatement (Third) of the Law Governing Lawyers.⁶ The Restatement describes a claim or contention as being frivolous when it is one "that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal will accept it."⁷ Courts often describe a contention or claim as being frivolous when it has no basis in fact or law.⁸ Applying either standard, and as a general rule, the fact that a lawyer believes that a particular claim or contention is likely to fail still does not render it frivolous.⁹ Nor is a claim or contention frivolous merely because it proves to be unsuccessful.¹⁰ This final point holds true even when a claim is defeated by way of a dispositive motion.¹¹

Lawyers may not defend against alleged Rule 3.1 violations on the basis that they did not know or understand the law, or made a "mistake of law."¹² For a lawyer to make such an argument would be to confess incompetence. Courts and disciplinary authorities rightly expect lawyers to know the law before making particular claims or contentions, although lawyers are unlikely to be found to have violated Rule 3.1 where the legal issue in question is unsettled.¹³

A. Lawyers' Duty of Reasonable Inquiry

Model Rule 3.1 also requires that the lawyer's conclusion that there is a non-frivolous basis for the claim or contention be formed after reasonable inquiry. Accordingly, lawyers must conduct some type of preliminary investigation into clients' intended claims and contentions.¹⁴ Lawyers cannot avoid this obligation by stating in a pleading that allegations are being made upon information and belief. Recognizing a duty to investigate in order to meet the requirements of Model Rule 3.1 is entirely consistent with lawyers' need to satisfy their duty of competence under Model Rule 1.1.¹⁵ Nevertheless, the nature and extent of the investigation required will depend on a number of variable factors.¹⁶ These factors include the complexity or nature of the claims or contentions to be investigated or developed, the time in which the investigation must be conducted, the resources available to the lawyer to conduct the investigation, the availability and cooperation of potential fact and expert witnesses, whether expert witnesses must be consulted,¹⁷ the availability of evidence that can be obtained without formal discovery, whether any investigation has been conducted prior to the lawyer undertaking the representation, the existence of parallel proceedings that complicate or expedite matters, and probably more.

A comment to Model Rule 3.1 addresses to some extent the tensions that can exist between lawyers' obligations under this rule and the practical realities of particular circumstances that lawyers may face:

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. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and determine that they can make good faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail.¹⁸

In time-sensitive matters—as where, for example, a statute of limitations is about to expire—the obligation to investigate the merits of the client's claims or contentions can be deferred until after filing suit.¹⁹ Any deferral must be reasonable under the circumstances; legitimate urgency may temporarily postpone a lawyer's duty to investigate, but it does not eliminate or excuse it. The longer lawyers wait to conduct reasonable post-filing investigations, the greater the risk of discipline or sanctions for pursuing frivolous claims. The question of how long is too long can only be answered on a case-by-case basis.

It is important to remember that Model Rule 3.1 and its analogs not only prohibit lawyers from initiating a proceeding where doing so would be frivolous, but also prohibit the pursuit of certain issues within a proceeding if those issues cannot be legitimately supported, even though other claims in the same proceeding are entirely valid. These prohibitions naturally apply with equal force to lawyers who are defending proceedings.

A number of decisions provide helpful insight into the contours of lawyers' ethical duty to satisfy themselves regarding claims and contentions proffered by clients, including addressing when, if ever, a lawyer can simply take a client at her word without investigating further. Not surprisingly, the duty is nearly universally measured by an objective standard.²⁰ The court in Wisconsin Chiropractic Ass'n v. State²¹ thoroughly described the nature of lawyers' duty to inquire:

An attorney may rely upon his or her client for the factual basis for a claim when the client's statements are objectively reasonable, but this does not mean that an attorney always acts reasonably in accepting a client's statements. Whether it is reasonable to rely on one's client depends in part upon whether there is another means to verify what the client says without discovery. A party and attorney may not rely on formal discovery after the filing of a suit to establish the factual basis for the cause of action when the required factual basis could be established without formal discovery. In addition, in deciding whether to rely on one's client for the factual foundation of a claim, an attorney must carefully question the client and determine if the client's knowledge is direct or hearsay and is plausible; the attorney may not accept the client's version of the facts on faith alone. Allegations by a client of serious misconduct of another may require a more serious investigation. While the investigation need not be to the point of certainty to be reasonable and need not involve steps that are not cost-justified or are unlikely to produce results, the signer must explore readily available avenues of factual inquiry rather than simply taking a client's word.²²

Other courts agree that lawyers are entitled to rely upon clients' factual recitations when they are "objectively reasonable" and in some cases even when the client's factual construct is arguably questionable, but only if the lawyer's other pre-suit investigative efforts were unsuccessful or other sources of information were not available either to verify or to disprove the client's version of events.²³

A comparison of two Seventh Circuit cases presents a helpful contrast of circumstances as to when a lawyer's reliance on her client's assertions in pursuing a lawsuit are reasonable.²⁴ In Kraemer v. Grant County,²⁵ the court agreed that a lawyer who had relied solely upon his client's assertions in deciding to sue Grant County had acted appropriately. The lawyer had advanced a position, consistent with the language in Comment 2 to Model Rule 3.1,²⁶ that filing the lawsuit alleging a conspiracy would permit him to pursue formal discovery to uncover information to verify the client's contentions. The court explained that, given the secretive nature of a conspiracy, the lawyer did "all he reasonably could have done to investigate his client's account of events" before filing the complaint; after all, it could not impose a standard that would require the lawyer to procure a confession from a conspirator before filing suit.²⁷ The Seventh Circuit stressed that the lawyer had made other efforts at inquiring about the facts before filing suit...