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March 08, 2021

Robert L. Kehr Re: Proposed changes to Model Rule 3.1 (public comment draft, dated April 12, 2000) - Center for Professional Responsibility



June 23, 2000

 American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed changes to Model Rule 3.1 (public comment draft, dated April 12, 2000)

Dear Commissioners:

I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct ("COPRAC"), whose activities are funded in part by the Foundation of the State Bar of California. COPRAC offers the following comments on this draft rule:

The last sentence of Comment [2] of Rule 3.1 states that an action is "frivolous" if, among other things, "the action is taken primarily for the purpose of harassing or maliciously i njuring a person . . . ." As written, the comment provides that such an action would be frivolous regardless of whether there is a "non-frivolous argument on the merits . . . or for an extension, modification or reversal of existing law." We believe that if an action is supported by the law and facts, a lawyer should not be disciplined merely because she follows the directions of a client whose primary purpose for the suit is to cause harm to his adversary. We are not certain how a lawyer, under threat of discipline, can "reasonably" determine that the client's "primary" motive in filing the suit or asserting a claim or defense is to harass, particularly when the action taken "is supported by a non-frivolous argument on the merits." Further, Comment [2], which includes the client's motive within the meaning of "frivolous," appears to be inconsistent with Comment [3], which differentiates between a "frivolous" position on the one hand, and a situation where "the client's primary purpose for taking the position is to harass or maliciously injure a person." In light of this, we think that rather than subject the lawyer to discipline, the better approach would be to suggest that the lawyer attempt to persuade her client not to pursue the contemplated action. This is in keeping with the best tradition of the Bar to seek compromise and to avoid controversy. If the lawyer fails to persuade the client, however, she should still have two ethical options: to follow the client's directions and pursue the action, or to withdraw under Rule 1.16 (e.g., because "a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent.").

Comments [3] and [4] of Rule 3.1 both provide that where, after first taking an action that is in compliance with the rule, a lawyer discovers either that the "claim, defense or contention is frivolous," or that "the client's primary purpose for taking the position is to harass or maliciously injure a person," the lawyer "must retract" the claim, defense or contention. This suggested addition of a retraction requirement to Comments [3] and [4] overlooks what appears in Rule 11 to be recognition that abandonment might serve the interests of justice even if there is no formal retraction. For example, Federal Rule of Civil Procedure does not require an amendment or retraction to the pleadings where the lawyer is unable to find factual support for allegations originally made in the pleadings. Rather, the litigant is advised "not thereafter to advocate such claims or defenses," or not to "continue to insist on that denial." Advisory Committee Notes, Rule 11, 1993 Amendments. We are particularly concerned with situations where a lawyer might retract a claim meritorious on the law and facts. Such a retraction could signal an improper purpose and a disclosure of confidential information. We urge the Commission to consider whether the approach taken in Rule 11 is the better resolution of these situations.

This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.


Robert L. Kehr

cc: Board of Governors
COPRAC members
Randall Difuntorum, COPRAC Staff Counsel

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