Lawyers and the public mean different things when they call a lawsuit “frivolous.” The public and the news media mean that the suit is silly, desperate, based on a crazy theory or unlikely to succeed. Lawyers, however, know that suits that seem silly, desperate, based on a crazy theory or unlikely to succeed sometimes win. Sometimes, they even change the law for the better. ABA Rule 3.1 explains,
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….
Comment: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.
The guy currently suing me for defamation, for example, hasn’t quite crossed the “frivolous” line, though he is arguing that what is clearly opinion is an assertion of fact, contrary to all existing jurisprudence. His appeal, however, while batty, does make an argument that I assume in in good faith, that a Supreme Court case supports his definition of libel. It doesn’t, but he has the right to make an argument in the hope that some judge or appellate panel will agree. Of course, he is also not a lawyer, so he can’t be held responsible for violating legal ethics.
This guy can be, however:
Pennsylvania lawyer Thomas Peter Gannon filed 49 appeals for a client in a condo dispute despite the fact that multiple judges had rejected his arguments and said, in effect, “Don’t come back here again with this crap.” A disciplinary board found that he abused the court system, demonstrating “excessive and misplaced zeal,” and the Pennsylvania Supreme Court suspended Gannon for two years for “multiple baseless and frivolous filings despite numerous warnings from judges at all levels,” relitigating issues determined in prior litigation, and thereby demonstrating an “inability to grasp the concept of res judicata.”
Gannon says that he disagrees with the suspension order and he plans to seek reconsideration through more law suits. Of course he does! He is a lawyer who, as the ABA Journals says, “won’t take no for an answer.” That can be admirable, but only when there is a chance, however slim, that the answer might change.
Source: ABA Journal