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: Continue reading