Rule 3.1 Frivolous Claims

• Library: Minnesota Legal Ethics: A Treatise (MSBA) (2022 Ed.)

Rule 3.1—Frivolous Claims

I. OVERVIEW

A. Three Fundamentals—Minnesota Supreme Court

Three points fundamental to Rule 3.1 are established in In re Panel Case No. 17289, 669 N.W.2d 898 (Minn. 2003). First, although the language of Rule 3.1 is largely drawn from the substantive provisions of Fed. R. Civ. P. 11, the differing contexts of the rules may produce different results in some cases. For example, sanctions sought against a lawyer under Rule 11 may be denied, due to Rule 11's demanding procedural requirements, but the lawyer may nonetheless be disciplined under Rule 3.1, especially where the lawyer has a discipline history including frivolous pleadings. Second, Rule 3.1 is applied on an objective, rather than a subjective, standard. Third, "Lawyers need, and are permitted, reasonable latitude in pleading their causes of action and fleshing them out before the court." Id. at 907. The Minnesota Supreme Court has repeatedly emphasized this need and permission.

B. Fundamentals—OLPR

An article by the Director of the Office of Lawyers Professional Responsibility (OLPR) describes Rule 3.1 fundamentals from OLPR's viewpoint. Martin A. Cole, Frivolous Litigation, BENCH & B. OF MINN., July 2013, at 12. The article explains that Rule 3.1 discipline proceedings normally follow other judicial proceedings, "disciplinary authorities may hesitate to charge a violation of Rule 3.1, MRPC, absent court findings in all but the most obvious and egregious situations. ... For the most part, the disciplinary system allows the court to make that type of judgment call in the first instance." Id. at 13. However, the article points out that sometimes OLPR's vantage point may be superior to a court's, because the court may be aware of only one frivolous litigation, while OLPR knows of a pattern of violations, in several courts. The article also reports that, even where a legal position taken by a lawyer is not frivolous, Rule 8.4(d) ("conduct prejudicial to the administration of justice") may be violated if the lawyer's tactics involve such abuses as "unduly voluminous pleadings, motions and discovery requests." Id. (citing In re Murrin, 821 N.W.2d 195 (Minn. 2012)).

C. Public Disciplines

Numerous public disciplines of lawyers are based in important part on Rule 3.1 violations. Most of the lawyers disciplined under Rule 3.1 were sanctioned first by courts in civil proceedings. Because the disciplines and sanctions have generally been based on obviously, extremely, and repeatedly frivolous pleadings, they are not inconsistent with the recognition of lawyers' need for latitude.

D. Pro Se Application

Rule 3.1 begins, "A lawyer shall not ... ." Id. The text appears to indicate that Rule 3.1 applies to lawyers acting pro se, as well as to lawyers representing clients. OLPR and the Court have disciplined many pro se lawyers for Rule 3.1 violations.

A 2014 case suggests the possibility that a Rule 3.1 comment could effectively amend Rule 3.1 so that it no longer applies to pro se lawyers. In 2014, the court held, for the first time, that a comment amends a rule, in this case Rule 3.3. In re Albrecht, 845 N.W.2d 184, 191 (Minn. 2014). A later case cites Albrecht for this holding. In re Moe, 851 N.W.2d 868 (Minn. 2014). Rule 3.3, like Rule 3.1, appears to apply to pro se lawyers, because both rules begin, "A lawyer shall not. . . ." These cases held, however, that Rule 3.3 does not apply to pro se lawyers. This holding is based on a comment, "This Rule [3.3] governs the conduct of a lawyer who is representing a client. . . ."). Rule 3.3 cmt. 1.

A comment at least suggests that Rule 3.1 applies only when the lawyer has a client. "The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure." Rule 3.1 cmt. 1. OLPR has expressed uncertainty whether Rules 3.1-3.9 generally apply to pro se lawyers. Referring to Albrecht and Moe, the OLPR director wrote, "Until recently, most of these rules were thought to apply with equal force to pro se lawyers or lawyers as parties. Now, that application is certainly in doubt." Martin A. Cole, Ethics Rules and Pro Se Lawyers, BENCH & B. OF MINN., Sept. 2014.

In 2015, a lawyer acting pro se was disciplined for violating Rule 3.1. In re Selmer, 866 N.W.2d 893 (2015). The court's opinion assumes, without discussion, that Rule 3.1 applies to pro se lawyers. In the author's view, Rule 3.1 continues to apply to pro se lawyers.

E. History

Rule 3.1 is a successor to Code of Professional Responsibility DR 7-102(A)(2), which provided, "In his representation of a client, a lawyer shall not: ... (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law." DR 7-102(A)(1) forbade a lawyer to take action "when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

F. Restatement § 11o(1)-(2)

These Restatement provisions are virtually identical to Rule 3.1. To these, Restatement § 110(3) adds a provision forbidding frivolous discovery requests and other violations of discovery rules.

G. Related Rules

Closely related rules include Rules 1.1, 1.2(d), 1.16, 3.3, 3.4, 3.8(a), 4.4(a), 8.2(a), and 8.4(c)-(d). Rule 8.4(d) is so closely related to Rule 3.1 that, "Engaging in frivolous claims or lawsuits violates Rules 3.1, and 8.4(d), MRPC. See In re Pinotti, 585 N.W.2d 55, 62 (Minn. 1998)." In re Ulanowski, 800 N.W.2d 785 (Minn. 2011). When findings of Rule 3.1 violations are coupled with findings of violations of such Rules as 4.4(a) or 8.4(c), the misconduct becomes more serious, because it involves both objective lack of merit and the intent to harass or lie.

II. RULE 11 AND OTHER CIVIL STANDARDS PARALLEL TO RULE 3.1

A. Rule 3.1 is Broader than Rule 11

Although Rule 3.1 uses language drawn from Rule 11, for several reasons Rule 3.1 covers more cases than Rule 11. First, Rule 11 has demanding procedural requirements that are not found in Rule 3.1, such as signatures, notice, and opportunity to cure. Second, Rule 11 applies to signed pleadings, but Rule 3.1 also applies to positions on any "issue," including oral argument, positions at depositions, etc. Third, Rule 3.1 applies in any "proceeding," but some proceedings do not have counterparts to Rule 11.

B. Reasonable Inquiry

Reasonable inquiry about the facts and law is required by Rule 11. Rule 3.1 cmt. 2 has a similar contemplation: "What is required of lawyers, however, is that they inform themselves 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." Rule 3.1 itself requires a lawyer to have a non-frivolous basis in fact and law for any position on an issue, but does not prescribe how that basis is to be established. Rule 11 allows denials based on lack of information. Rule 3.1 does not address that issue.

C. Purposes

The purpose of Rule 11 is to deter frivolous pleadings. The purposes of Rule 3.1 are to deter frivolous actions regarding issues in proceedings, and to provide a basis for disciplining lawyers who take such actions.

D. Cognate Authorities

Minn. R. Civ. P. 26.07, and its counterpart, Fed. R. Civ. P. 26(g), require signatures as certifications that discovery requests and replies are complete, not badly motivated, not unduly burdensome, etc. Rule 11 does not apply to discovery requests. Minn. R. Civ. P. 11.04. Other rules, statutes, and the court's inherent authority provide bases for imposing sanctions for improper conduct by lawyers in court proceedings. Judicial findings of violations of any of these rules, if reported to OLPR, may provide a basis for a violation of Rule 3.1 or Rule 3.4(c). Cassie B. Hanson, When Does Zealous Advocacy Become Obstruction?, MINN. LAW., Apr. 7, 2008, at 5.

III. EFFECT OF PRIOR PROCEEDINGS ON DISCIPLINE PROCEEDINGS

A. Normally, No Collateral Estoppel

The Minnesota Supreme Court has expressly held that in discipline proceedings, it is "improper" to try to prevent a lawyer from "relitigating" issues that were adjudicated in other civil proceedings. "A plaintiff who asserts collateral estoppel "to prevent a defendant from relitigating an issue previously decided against the defendant" is using "offensive collateral estoppel." BLACK'S LAW DICTIONARY 279 (8th ed.2004) (defining "offensive collateral estoppel"). We have said that offensive collateral estoppel is improper in disciplinary proceedings. See Morris, 408 N.W.2d 859 (1987) at 862-63. But, we allow a referee to independently consider the transcripts and other documentation from prior proceedings involving the attorney misconduct. Id. at 863." In re Murrin, 821 N.W.2d 195, 205 (Minn. 2012) (emphasis added). The court stated only that "we allow," i.e. not require, the discipline referee to consider the civil record. The nature of prior civil proceedings may affect the degree to which a lawyer may contest prior findings. Where findings of prosecutorial misconduct were made by clear and convincing evidence, in a 15 day hearing, but the lawyer had no right of appeal, the lawyer was permitted only limited additional evidence in discipline proceedings. In re Morris, 408 N.W.2d 859 (Minn. 1987). Civil sanctions that are upheld by appellate courts are very often follwed by discipline. This prohibition does not extend to criminal convictions. For discipline proceedings, criminal convictions establish "conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted." Rule 19(a), R. Law. Prof. Resp.

B. Collateral Estoppel After Civil Court Sanction for Frivolous Pleading?

It is not clear whether the Court makes an exception to the general rule against collateral estoppel for violations of Rule 3.1. In one case, the court took federal court determinations of...