Last year, I ran the “Professional Responsibility Madness” challenge. Modeled on the “March Madness” brackets associated with the NCAA basketball tournament, I seeded 64 concepts associated with professional responsibility & legal ethics into the bracket. Round-by-round, lawyers voted. The concepts (and their category) that advanced to the Final Four were:
- Candor to the Tribunal (Duties to Others)
- Former Client Conflicts: Substantially Related? (Conflicts & Confidences)
- Who Decides? Lawyer or Client? (Duties to Clients)
- Did you say “Utes?” (My Cousin Vinny)
I was surprised by the interest in “Who Decides? Lawyers or Client?” Until then, it was an issue rarely raised in ethics inquiries.
Flash forward to 2021.
In the past month, two different lawyers have made inquiries that boiled down to the same question: “what do I when the client insists on presenting a claim that I think is frivolous?”
In short, my position is that the lawyer decides which facts and arguments will be advanced, and that the lawyer, not the client, decides which facts and arguments are frivolous. Then, if the client insists that the lawyer present frivolous claims, the lawyer must move to withdraw. In responding to each inquiry, I cautioned the lawyers that there is a difference between a frivolous claim and one that has little chance of prevailing.[i]
My position derives from the following rules:
- Rule 1.2(a), which leaves the objectives of the representation to the client and how those objectives are pursued to the lawyer’s discretion, in consultation with the client;
- Rule 1.4(a)(5), which requires a lawyer to “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law;”
- Rule 3.1, which prohibits a lawyer from bringing a claim or asserting a position “unless there is a basis in law or fact for doing so that is not frivolous;”
- various provisions of Rule 1.16, most notably Rule 1.16(a)(1), which requires a lawyer to withdraw when continued representation will result in a violation of the rules; and,
- the general duties of fairness to the opposing party and candor to the court.
Doing some follow-up research, I came across Ethics Opinion 1214 from the New York State Bar Association. Issued January 11, 2021, the opinion answers a question from a lawyer assigned to represent a person who had filed a pro se petition to vacate a judgment of foreclosure. Upon reviewing the filing, the lawyer concluded that the person lacked a non-frivolous basis in law or fact to vacate the judgement. The opinion concludes as follows:
- The lawyer may not argue or advance frivolous arguments.
- If the person insists, the lawyer may move to withdraw pursuant to:
- New York’s Rule 1.16(c)(4). The rule permits withdrawal when a “client insists on taking action with which a lawyer has a fundamental disagreement;”[ii] or,
- any other rule mandating or permitting withdrawal.
- In moving to withdraw, the lawyer must not disclose confidential information.[iii]
- If a motion to withdraw is denied, the lawyer must continue to represent the client, but without presenting frivolous claims.
Here’s the key language on the final point. Even when withdrawal is not allowed, the lawyer:
- “may still not engage in ‘frivolous conduct’ at the direction or behest of the homeowner. A client has no right to instruct a lawyer to violate a Rules of Professional Conduct, and a lawyer has no right to follow an instruction that the lawyer violate a Rule. Thus, the inquirer must find a means to competently represent the homeowner without putting forth frivolous arguments.”
As always, be careful out there.
[i] I suppose this might be referred to as the “Dumb & Dumber Corollary.”
[ii] Vermont’s Rule 1.16(b)(4) includes the same language.