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; Chesire v. Air Methods Corp., No. 3:15-0933, 2016 WL 6471235, at *1, 6-8 (W.D. La. Nov. 1, 2016) (imposing sanction for improperly threatening to expose confidential information to gain leverage in settlement talks). However, some Louisiana lawyers have been disciplined for filing wholly meritless lawsuits. See, e.g., In re Harvin, 117 So. 3d 907, 913 (La. 2013) (suspending lawyer for 30 days for causing unnecessary litigation when the lawyer filed notice of lis pendens for client who had no claim to the property in question). 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); In re Williams-Bensaadat, 181 So. 3d 684, 691-92 (La. 2015) (suspending lawyer for instituting a lawsuit against a former client instead of endorsing a settlement check and resolving fee dispute through concursus proceeding). 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 (La. 2010) (disbarring lawyer 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. See e.g., In re Mincilier, 74 So. 3d 687, 692  (La. 2011) (finding no violation for lawyer facing 3.1 charge for filing a pleading contrary to a court’s order);  In re Cucci, 85 So. 3d 62 (La. 2012) (noting the ODC alleged a 3.1 violation but the hearing committee saw lawyer’s filing as “creative, if novel” argument).  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 Prof’l Conduct R. 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, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following: (1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or a nonfrivilous argument for the extension, modification, or reversal of existing law; (3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; (4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on law of information or belief.” 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).

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 January 18, 2017.

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