Frivolous Lawsuits: Not That Much Fun

Frivolous lawsuits can tempt the financially-challenged attorney. You should make a policy to always err on the side of caution if a frivolous lawsuit comes your way, and say no. A failure to do so can damage your reputation, which is the most important factor in your success.

Frivolous Lawsuits Are (Very) Loosely Defined

Given the economy, a struggling attorney, particularly a new one, may well be tempted to represent a client in a frivolous lawsuit. I’m continually amazed at how many stupid people there out there who somehow have made enough money to pursue lawsuits that have no legal merit. If someone comes into your office and asks you to file a suit that you think might be frivolous, you might well grab your copy of your state’s ethics rules.

Rule 3.1 of the ABA Model Rules of Professional Conduct rule tells us that we can’t file (or defend) a lawsuit “unless there is a basis in law and fact for doing so that is not frivolous.”

So, you grab Black’s Law Dictionary (2nd Pocket Edition) and look up “frivolous”: “lacking a legal basis or legal merit; not serious; not reasonably purposeful.”

And just because you have it on the shelf, you grab the Shorter Oxford English Dictionary (5th Ed.): “of little or no value or importance, paltry; (of a claim, charge, etc.) having no reasonable grounds . . . lacking seriousness or sense.”

Still confused, you check the ABA Model Rules commentary: “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.” There’s more, but it’s not any more helpful. You can read the case law; have fun.

The first real problem is that a lawsuit is frivolous if a judge thinks it is, just as a person acted reasonably if a judge thinks she did. And if the judge feels like it, sanctions for wasting the court’s time and the taxpayers’ money will rain down on you.

The Real Ethical Problem

The other real problem is that there’s a built-in conflict of interest in most (but not all) law practice, in particular when one charges by the hour. The lawyer generally makes more money by litigating or appealing than by settling early or giving up, but that often is not in the best interests of the client. This is the moral conundrum I kept waiting to hear (and talk) about in my Professional Responsibility class. Not surprisingly (in retrospect), it never came up.

So don’t make this call alone if you find yourself in this situation. Talk to some lawyers you trust. You don’t want your name in the paper for helping somebody sue (or sue again) just because he can (and because you need the money.) Oh, and in any litigation, you should always make sure your client is still alive when you file.


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