VI. The Consequences of Tactical Abuses

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

VI. The Consequences of Tactical Abuses

A common theme in many cases discussing the advocate-witness rule is courts' need to carefully scrutinize motions to disqualify lawyers as witnesses because they hold great potential for tactical abuse. Courts recognize that a party can use a disqualification motion premised on Rule 3.7(a) as a ploy to cripple its opponent's case.¹⁸¹ Lawyers who baselessly name opposing counsel as witnesses to force their withdrawal from the opponent's representation or who move to disqualify another lawyer on Rule 3.7(a) grounds for purely tactical reasons, however, risk professional discipline for such conduct.¹⁸² Several ethics rules potentially apply to lawyers who seek another lawyer's disqualification to gain a tactical advantage in litigation.

For example, Model Rule 3.1 provides that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in fact or law for doing so that is not frivolous."¹⁸³ Whether a claim or contention is frivolous is generally measured by an objective "reasonable attorney" standard.¹⁸⁴ For claims or contentions to be frivolous under Rule 3.1, there must be such a complete absence of facts or law that reasonable lawyers could not have expected a court to rule for them.¹⁸⁵ Trouble remains, however, because some courts augment Rule 3.1's objective test with a subjective standard.¹⁸⁶ If a lawyer in one of these jurisdictions makes a claim or contention with an improper motive or in bad faith, the fact that the position may be objectively non-frivolous will not spare the lawyer from professional discipline.¹⁸⁷

Model Rule 3.2 provides that a lawyer "shall make reasonable efforts to expedite litigation" consistent with the client's interests.¹⁸⁸ Lawyers who make lawyer-witness claims in bad faith or who file related disqualification motions are not making reasonable efforts to expedite litigation. To the contrary, such behavior delays and impedes the resolution of disputes by distracting the parties and their counsel, and wastes judicial resources.

Model Rule 4.4(a) also potentially applies here. The rule provides: "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."¹⁸⁹ Model Rule 4.4(a) makes clear that lawyers' duty to competently represent clients does not license them to harass others.

Rule 4.4(a) disputes often pivot on whether the lawyer's actions had "no substantial purpose" other than embarrassing, burdening, or delaying a third person.¹⁹⁰ The apparent problem with this test is that a lawyer's actions aimed at harassing a third person may be done with the intent to benefit the lawyer's client, thus suggesting a legitimate alternative purpose. That is no answer, however, because incidental or secondary benefit to an accused lawyer's client is insufficient to defuse a Rule 4.4(a) violation.¹⁹¹ As for determining whether a lawyer's means in representing a client have a substantial purpose other than embarrassing, delaying, or burdening a third person requires a court to examine the lawyer's motives. Lawyers "cannot escape responsibility for a violation based on [their] naked assertion[s] that, in fact, the 'substantial purpose' of conduct was not to 'embarrass, delay or burden' when an objective evaluation of the conduct would lead a reasonable person to conclude otherwise."¹⁹²

Finally, there is Rule 8.4(d), which prohibits conduct "prejudicial to the administration of justice."¹⁹³ Although such conduct defies precise definition,¹⁹⁴ Rule 8.4(d) is guaranteed to apply to misconduct in litigation.¹⁹⁵

In addition to potential disciplinary consequences, lawyers who use an opposing lawyer's purported status as a necessary witness to gain some sort of tactical advantage risk sanctions imposed by a court invoking its inherent authority to regulate the conduct of lawyers appearing before it, or imposed under a rule or statute governing vexatious litigation. Optyl Eyewear Fashion International Corp. v. Styles Cos., Ltd.,¹⁹⁶ is an illustrative case.

In that case, Optyl sued Style for trademark infringement and unfair competition. Optyl alleged that Style sold jackets bearing "Carrera" labels; Optyl owned the Carrera trademark. In preparation for trial, Optyl sent letters to more than 1,000 customers in an effort to determine the level of actual confusion between its jackets and those sold by Style. After learning of the letter, Style filed an amended counterclaim for libel. It...