Advancing Frivolous Claims Violates Ethical Rules
As explained by the appellate court, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Litigation Section leaders believe that the conduct in this case was sufficient to meet the standard for unreasonable conduct. “Lawyers are officers of the court,” states John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. He notes that plaintiff’s counsel violated several ethical standards and rules, not the least of which was Rule 1.1, requiring an attorney to represent his or her client competently. Unlike in this case, “a competent lawyer would not bring a frivolous claim or advance a frivolous appeal,” he explains.
“Counsel here certainly violated ethical rules,” comments Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Professional Liability Litigation Committee, also pointing to the competence requirement. “Do your research on the law, make sure your arguments are well supported, and be able to say no to the client,” he advises. “We are seeing that courts are starting to call lawyers out more for driving up fees with frivolous motions and conduct,” he adds, stating that “it’s important for counsel to draw the line between a good-faith argument that’s a long shot and a frivolous motion or pleading.”
Where Is the Line Between Zealous Advocacy and Unreasonable Conduct?
“There is no place in the practice of law for incivility or unprofessionalism,” declares Barkett. “Zealous advocacy was removed from the test of the Model Rules a long time ago,” he continues, reiterating that “there are no implications here other than lawyers should not bring frivolous lawsuits or appeals.” Drawing the line between zealous advocacy and abusive or unethical conduct may be difficult, but “characterizing your opponent’s brief and conduct as ‘an outright lie,’ ‘cheating to win,’ ‘gamesmanship,’ and ‘frivolous,’ as occurred here, is one answer” to where it lies, he elaborates.
“It’s kind of like calling traveling in the NBA—there, they never call it and when they do it shocks everybody,” illustrates LeBoff, suggesting that it is difficult to predict when a court may call out a party’s or attorney’s conduct. Here, though, “counsel’s lack of civility and attacks on opposing counsel seemed to come back to bite him. It doesn’t pay to insult your opposing counsel,” he advises.
How Courts Police Unethical or Abusive Conduct
Some are troubled by an award that makes an attorney jointly liable for the award of fees and costs to the prevailing party. “You don’t want attorneys to be the guarantors of their clients’ cases,” cautions LeBoff. “An option for the court here would have been to refer the attorney to the local bar,” he suggests. “That doesn’t do anything for the aggrieved party,” he concedes, noting that the innocent party might still be left to deal with the consequences of opposing counsel’s potential misconduct, including increased fees.
Barkett declines to say whether an award of fees is the “best way” to prevent abusive conduct. “Certainly, referral to the bar for consideration of the lawyer’s fitness to practice law might be an option in extreme cases,” he offers. “For sure, a published opinion sanctioning a lawyer by an award of fees should serve as a deterrent,” he explains. However, noting that “the lower’s court’s award of fees did not deter the continued advancement of a frivolous appeal,” he suggests it was appropriate in this case. “Generally speaking, appellate courts will be reluctant to award fees. But when egregious facts are presented, as was the case here, they will not hesitate to award fees,” he warns. The bottom line is “know your case, make sure you can satisfy Rule 11 standards before filing, and if you learn after filing your client’s claim is frivolous, dismiss your case,” concludes Barkett.