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John A. Humbach Comments On Proposed Rule 3.1 - Center for Professional Responsibility


(Meritorious Claims and Contentions)

Submitted to the Ethics 2000 Commission, American Bar Association
by John A. Humbach

I commend and strongly urge the adoption of the modifications to Rule 3.1 that are proposed in the Public Discussion Draft of April 12, 2000. The proposed changes are much needed.


Often lawyers encounter situations in which they very possibly can "win" a case or prevail on an issue but they know or reasonably believe that, on the law and actual facts, they legally "should" not. Stated another way (and viewed from the adversary's perspective), there is a big difference between being entitled to a legal outcome and being able to prove the facts that the law requires in order to establish that entitlement.

This discrepancy between provability and entitlement can be the source of much injustice, and can occur for a variety of reasons. For example, the discrepancy can occur because one of the parties, due to bad luck or happenstance, simply lacks access to sufficient admissible evidence to prove the truth. It can occur because juries and others can make mistakes or be misled--especially if one of the advocates is forcefully pressing a portion of the truth while deliberately concealing the remainder (in the name of "confidentiality"). And it can occur because parties sometimes are simply unable to afford what it takes to establish facts which, with greater resources, they could readily have proved. When these situations occur, lawyers and their clients are sometimes, understandably, tempted to try for better than they legally deserve--to make a play on known imperfections in the fact-finding system to obtain an advantage or to avoid a disadvantage that is contrary to the law's intendment.

It will probably never be possible to eliminate entirely the occasional discrepancies that exist between actual legal entitlements and de facto provability. However, that does not mean that the profession should condone or encourage deliberate attempts by lawyers to seize unmerited advantages from these discrepancies. On the contrary, the ethics of our profession should clearly prohibit lawyers from attempting to gain legal advantages or to avoid disadvantages that they know or should reasonably believe run contrary to the substantive intentions of the law. The proposed rule has the salutary effect of incorporating such a prohibition. By insisting that lawyers act only when they have a non-frivolous basis in both "in law and fact," the proposed rule makes clear that it is improper to make plays on the system's fact-finding imperfections to avoid or defeat the substance of the law.

By contrast, as it presently stands Rule 3.1 actually encourages such plays on the system. Under current Rule 3.1, lawyers may feel justified or even obliged to bring or defend proceedings, or to assert or controvert claims, even when they know or strongly believe that their actions are unsupported by the facts and applicable law. Indeed, under present rule, a lawyer is not even responsible to investigate "adverse" evidence or to form a reasonable belief on the matter.

The proposed modifications to Rule 3.1 will remedy these difficulties. They will make clear that lawyers to have a responsibility to investigate and to form a reasonable belief as to whether or not there is a meritorious basis, in both law and fact, for asserting or contesting a point. Under the modified rule, it would be no longer enough that the point may happen to be "winnable."

Fabricating Controversy: A Distinct Issue--While I strongly endorse the direction of the proposed changes to Rule 3.1, I also propose one suggestion for an addition. The rule or, at least, the comments should contain an explicit prohibition on fabricating controversies. The suggested addition to the rule would be a new sentence, after the existing first sentence, such as follows:

A lawyer shall not fabricate controversies or pretend disagreements with a view to gaining a legal advantage or avoiding a legal disadvantage that the lawyer knows or reasonably should know is not warranted by the actual facts or applicable law.

The adversarial tactic of fabricating controversies, or pretending disagreement, is a distinct and important professional wrong, a distinctly unethical way to secure a legal advantage or to avoid a legal disadvantage. The language of comment [2], which in effect defines the conception of "frivolous," should include an express reference to it. As it presently stands, the proposed comment [2] seems only to condemn the more traditional forms of "frivolous" conduct, viz. for dilatory, harassment or malicious purposes ( see below).

Broadly speaking, fabricating controversy means putting a point into contention even though the lawyer knows or reasonably should know that there is no real difference between the parties' actual understandings of the facts or applicable law. In fabricated controversy, a factual position is advocated primarily because it may be legally advantageous to do so, even though it does not correspond to the beliefs about past events that either the lawyer or the client actually holds.

The possibilities for fabricated controversies are manifold, but they always arise for the same general reason, namely, because the evidence of the legally relevant events is often fragmentary and conflicting. Frequently, the traces that remain from the past allow a lawyer to paint a picture of those events that is legally very different from what actually occurred. The temptation to resort to fabricated controversy arises whenever, by stroke of happenstance, a party finds himself in a position where he can allege positions that do not correspond to reasonably known truth but which are, nevertheless, plausibly "provable" without resort to direct falsehoods or other illegality.

Fabricated controversies may be concocted as to matters of procedure or of substance. They may relate to minor collateral points or to the core fact in question. The attraction of fabricating controversy stems from the possibility it offers to make a play on basic features of the process itself--the costs it imposes on the opponent, the uncertainties it engenders, and the opportunity for lucky "accidents" that it provides. The hope is essentially to eke out better than one deserves.

Notice that fabricated controversy is something very different from (and systemically much worse than) traditional "frivolous" advocacy. Traditionally, a frivolous position has generally meant one that is dilatory, harassing or malicious--so obviously without merit that there is virtually no way a court would accept it. Cf. last sentence of proposed comment [2]. Its worst impact is usually to cause delay and expense. By contrast, the tactical purpose of fabricated controversy is to try to prevail, to play on a happenstance chance of prevailing, despite the lack of a proper factual or legal basis. The fabrication of controversy is a directed effort not just to delay the rule of law but actually to derail it, by inducing a court or others to accept factual conclusions that neither the lawyer nor the client takes to be true.

Just because there is a good chance a court or others can be fooled on a matter of fact does not, of course, mean that urging a non-true position is legitimate advocacy. The possible fallibility or gullibility of juries, judges or negotiating counterparts is not the test of whether conduct is honest. Nor is willful blindness an honest strategy.

There is, of course, a variety of reasons why parties might want to prevail even though the law and facts are against them. For example, parties who have suffered much or incurred personal loss may wish and even "need" a major damage award despite the fact that the defendants are not legitimately liable. Perhaps the greatest temptation to fabricate controversy occurs when defendants find that the marginal cost of pretending to disagree are small compared with the potential legal advantage that might accrue. For instance, a defendant who is facing a huge (and well warranted) judgment has no particular incentive to just "give up" if there is even a small chance that, by pretending to contest a point or issue, the impending defeat might be deflected. The cases in which miscarriages or "accidents of injustice" occur, or where parties simply wear out and want to "get out," are common enough to make such tactical ploys well worth considering. Such tactics are not, however, good for assuring justice or for the reputation of our legal system.

Unfortunately, the present wording of the comments to the Proposed Rule does not make clear that the Proposed Rule is directed against fabricated controversy as well as against the more traditional forms of "frivolous" advocacy (dilatory, harassing and malicious). On the contrary, the last sentence of Comment [2] seems limited to prohibiting actions that are either legally implausible or "primarily for the purpose of harassing or maliciously injuring a person." However, these do not exhaust the possibilities for improper claims and contentions. An express reference to a prohibition on fabricated controversy, either in the Rule or at least in the comments, would remove any doubt that such tactics are ethically condemned.

The Challenge of "Equal Justice"--It is frequently observed that there is a substantial shortfall in legal services to the less well off in our society, and addressing this shortfall is among the important responsibilities of our profession. However, it is likely that one of the principal contributing causes of this shortfall is a particular vision of the adversary system, according to which no lawyer is directly responsible for truth itself, but only to such partial versions of the "truth" as serve the interests of the lawyer's own clients. Rather than total truth being the ethical responsibility of any individual lawyer, it is viewed as the responsibility, only, of the system as a whole. Accordingly, if a lawyer believes that a case can be won against an adverse party, the current ethic seems to allow (and perhaps, even, require) that the lawyer press for victory as zealously as possible--even if, based on private information, the lawyer knows or reasonably should know that there is no basis for the claim.

This particular adversary ethic, which denies individual responsibility for "whole" truth, has especially unfortunate effects when a lawyer's zealous representation skills are unleashed against a person who is either poorly represented or not represented at all. It is especially the under-represented classes in our society who are likely to be unable to adequately test and rebut the evidence that is mounted against them, who are unable to make the case for prevailing even when, on the law and facts, they should. This problem of "unequal justice" has no simple solution, but it would at least be mitigated if, unlike today, all lawyers had a clear ethical responsibility to refrain from fabricated controversy in situations where they know, or reasonably should know, that their clients should not prevail. Such a requirement to refrain is at least implicit in the Proposed Rule 3.1; however, the limited definition of "frivolous" in the last sentence of comment [2], which mentions only traditional forms of frivolous advocacy, creates unnecessary doubt. By clearly prohibiting fabricated controversy, the new Rule 3.1 will better assure that the negative effects of the present shortfall of legal services is not exacerbated by the tactics of the legal profession itself.

Conclusion--A lawyer should not assist a client in seeking a legal advantage that is not merited under the law or to avoid a liability that the law would normally apply, given the facts of the client's situation. Lawyers who insist on the right or "duty" to achieve such results by making plays on imperfections in the fact-finding system undermine the integrity of the profession, the law and justice. This is not to say that a lawyer must act as ultimate arbiter of the truth of the client's cause. It is to say, however, that a lawyer should not assert a factual position as true if neither the lawyer nor, at least, the client honestly sees it that way. To assert a position as fact merely because it might help the client's cause is to fabricate controversy.

Too often, lawyers confuse the concept of "winnability" with the concept of "substantively meritorious," especially in cases where the rules of evidence and other barriers to proof might allow the lawyer to successfully assert a counterfactual position that the lawyer should know (with reasonable inquiry) is to be such. The Commission should recommend a revision to Rule 3.1 or, at least, the comments that will eliminate the basis for such confusion.

Dated: May 23, 2000