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.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 3.1 (2002).

Comments to ABA Model Rule 3.1

[1] 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. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.

[2] 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 the applicable law 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. 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.

[3] The lawyer’s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

Annotations

Generally

Lawyers owe duties not only to their clients (such as competence, diligence, loyalty and confidentiality), but also to the legal system. Rule 3.1 sets forth the first of several duties owed by lawyer-advocates to the system of justice.

Lawyers who file frivolous lawsuits or otherwise make nonmeritorious claims or contentions are typically sanctioned judicially rather than through disciplinary proceedings. See La. Code Civ. Proc. Ann. art. 863 (2007); Fed. R. Civ. P. 11. However, some Louisiana lawyers have been disciplined for filing wholly meritless lawsuits. See, e.g., In re Cook, 932 So. 2d 669, 676 (La. 2006) (disciplining lawyer for filing “repetitive and unwarranted pleadings” and making “frivolous and harassing claims for discovery”); In re Zohdy, 892 So. 2d 1277 (La. 2005) (suspending lawyer for six months for, among other offenses, unjustifiably obstructing a class action lawsuit); In re Stratton, 869 So. 2d 794 (La. 2004) (suspending lawyer for three years for filing frivolous lawsuit “designed to harass” former secretary); In re Hackett, 701 So. 2d 920 (La. 1997) (reprimanding lawyer for filing meritless motion to dissolve temporary restraining order); In re Caulfield, 683 So. 2d 714 (La. 1996) (disbarring a lawyer for staging fake automobile accident to defraud rental car company); In re Forman, 634 So. 2d 330 (La. 1994) ( suspending a lawyer for six months for filing frivolous fee-collection lawsuit). Lawyers have also been disciplined for vexatious litigation conduct. See, e.g., In re DuBarry, 814 So. 2d 1273 (La. 2002); see also In re Lester, 20 So.3d 735, 2009-2052 (La. 1/29/10) (disbarring attorney for engaging in “frivolous and vexatious litigation” among other rule violations).

It is often difficult to determine whether a lawyer’s conduct warrants the imposition of sanctions pursuant to this and related standards. Most modern authorities hold lawyers to an objective rather than to a purely subjective standard of behavior. Thus, a lawyer with a “pure heart, but empty head,” should not avoid an appropriate sanction merely because the lawyer acted without ill will. See Restatement (Third) of the Law Governing Lawyers § 110 cmt. d (2000) (“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.”); see also Fed. R. Civ. P. 11.

For a rule addressing frivolous conduct in discovery proceedings, see La. Rules of Professional Conduct Rule 3.4(d) (2004).

Related Authority: Louisiana Code of Civil Procedure Article 863

Under Louisiana Code of Civil Procedure article 863, the signature of a lawyer on a pleading filed in a civil case, “shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” La. Code Civ. Proc. Ann. art. 863(B) (2007). A violation of this rule can subject the lawyer to “an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.” Id. art. 863(D). However, a lawyer is entitled to a hearing prior to the imposition of such a sanction. Id. art. 863(E). Furthermore, article 863 provides a safe harbor for lawyers who file questionable lawsuits on or near a prescription date: “A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.” Id. art. 863(F).

Related Authority: Federal Rule of Civil Procedure 11

(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,–

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court’s Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s abuse of the legal process: disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.2 (1992) (Abuse of Legal Process); id. stds. 6.21-6.24.

Notes

^*This page was updated on July 1, 2010.

Share/Save/Print