TABLE OF CONTENTS
Featured Topic: Rule 3.1 and Frivolous Law Suits
Authority: N.Y.S.B.A. Ethics Opinion 1203: COVID-19 Anxiety
Tech Tip: Ransomware – What It Is and How to Respond
Ethics and Malpractice Research Tip: The ABA Center for Professional Responsibility
A Blast from the Past: Lawyers are Officers of the Court
RULE 3.1 AND FRIVOLOUS LAW SUITS
Last month’s lead article discussed the potential dangers of one lawyer criticizing another lawyer for representing a particular client or cause she dislikes. Such criticism suggests that, simply by undertaking representation, lawyers necessarily endorse their clients’ political, economic, social or moral views or activities. Because Rule 1.2(b) instructs that is not the case and because suggestions to the contrary undermine the health of our legal system, such criticism should be avoided. There is, however, one situation in which a lawyer not only should, but must, speak up about another lawyer’s representation: when a lawyer files a lawsuit that violates the Rules of Professional Conduct.
KRPC 3.1 instructs:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Missouri’s Rule 4-3.1 and ABA Model Rule 3.1(a) read the same. And Comments 1 and 2 to the Kansas, Missouri, and Model rule all state:
 The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.
 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.
In summary: victory need not be certain or even likely, but good faith is required.
Both the Federal Rules of Civil Procedure and most states’ procedural rules also prohibit frivolous law suits. Federal Rule of Civil Procedure 11(b) states:
Representations to the Court.
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
At the heart of Rule 3.1 and Fed. R. Civ. P. 11 is the idea of “abuse of process,” or using the court to achieve an aim that is alien to the purpose of the justice system.
Rule 3.1 uses the phrase “good faith argument.” Presumably when a lawyer brings a case to court which he knows has no basis in law and/or for which there is no evidence factually, as prohibited by FRCP 11(b), he is not acting in good faith. Rule 3.1 also speaks of it being permissible to bring a case for the “extension, modification or reversal of existing law.” While a lawyer may bring a challenge to current law, there must still be facts supported by evidence and good faith legal arguments. On December 4, 2020, the ABA Legal Fact Check put it this way:
In short, if a lawyer files a complaint based on a legal theory so far fetched that no court could be expected to accept it, then she could have violated Rule 11 or its state equivalent and be subject to sanctions as provided for in the rule. She could also be sanctioned by the lawyer regulators in her state for violating ethics rules in place in virtually every jurisdiction based on American Bar Association Model Rules of Professional Conduct, including Model Rule 3.1, and face discipline ranging up to disbarment.
“Frivolous Lawsuits,” https://abalegalfactcheck.com/articles/frivolous-lawsuits.html (4 Dec. 2020).
But it is not enough to abide by these rule and keep to yourself. The Rules of Professional Conduct require lawyers to report violations by fellow attorneys. KRPC 8.3(a) states:
A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.
Missouri Rule 4-8.3(a) and ABA Model Rule 8.3(a) likewise read:
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.
The net effect of the combination of Rules 3.1 and 8.3(a) is that, if a lawyer determines that another lawyer has filed a frivolous lawsuit, the first lawyer is obliged to report the second lawyer to the proper disciplinary authority.
These rules have become prominent points of discussion regarding the post-election litigation by the Trump campaign and allies of President Trump. Indeed, if we consider the more than fifty cases brought by the Trump camp, one can fairly make the argument that some—but not all—of the cases were “frivolous” under Rule 3.1 and violated federal and state procedural law. Given the widespread publicity about the post-election litigation, the controversy about the purpose of the cases, and some of the strongly critical decisions rendered by judges who presided over them, it seems inevitable that disciplinary complaints will be filed against some of the lawyers involved. Subsequent disciplinary actions will give the Bar an opportunity to further explore what constitutes a frivolous lawsuit and take any necessary protective action to preserve the justice system against abuse of process by lawyers and their clients.
N.Y.S.B.A. ETHICS OPINION 1203: COVID-19 ANXIETY
As the COVID-19 pandemic has raged across the United States, many courts have moved online, while others continue to meet in person with varying degrees of precautions to protect those involved in proceedings. How individual lawyers have reacted to the dangers of contracting the novel coronavirus in the courtroom has varied widely. Each lawyer called to appear in person must make a judgment as to whether her participation at an in-person proceeding presents an acceptable risk of contracting the virus—and what to do if she determines the risk is unacceptable.
Recently, the New York State Bar Association issued Ethics Opinion 1203, addressing whether a lawyer concerned about contracting the coronavirus in the courtroom could withdraw from a case without violating the Rules of Professional Conduct. The opinion considered the circumstances of an attorney representing a client in an immigration proceeding scheduled for an in-person hearing. It is crucial to note that the facts presented stated “no COVID-19 safety protocols or procedures to mitigate the spread of the coronavirus have yet been established for such in-person appearances.”
The New York authorities noted that Rule 1.16(b) permits lawyers to withdraw from a representation when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.” They found Rule 1.16(b) would be applicable to this situation, explaining:
The inquirer’s fear of contracting COVID-19 could render it difficult to carry out the representation effectively because the inquirer’s fear might subtly but powerfully undermine the effectiveness of the Immigration Court representation in a number of ways. For example, the inquirer might be reluctant to spend time with the client in-person to understand the case and communicate the client’s options. The inquirer might also consent prematurely to a disposition that ends the proceeding, even though it is likely that a more favorable disposition could be obtained later, following additional appearances, motions, or conferences. In order to limit exposure to the disease, the inquirer might even hasten to complete a hearing without calling witnesses to testify on behalf of the client or by waiving cross-examination of government witnesses. The standard required for Rule 1.16(d) permissive withdrawal would be met by any of these influences, or like influences, to which the inquirer would be susceptible.
N.Y.S.B.A. Ethics Opinion 1203. Basically, Opinion 1203 recognizes that a lawyer suffering from significant fear that she might contract COVID-19 by attending an in-person proceeding will not be able to adequately represent her client as required by Rule 1.1 (Competence). Even if the lawyer attends the in-person hearing and attempts to ignore such anxiety, there would always be a risk that her anxiety might subconsciously influence her decisions.
KRPC Rule 1.16(b) and Missouri Rule 4-1.16(b) are worded slightly differently from NY Rule 1.16(b). They both permit a lawyer to withdraw when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” It is unlikely this different wording requires a different conclusion in the context of the question raised in Opinion 1203. The factors listed in Opinion 1203 are factors that should be as relevant under the Rules in Kansas and Missouri.
But these factors are not the end of the inquiry. The New York Opinion notes that NYPRC 1.16(c)(1) permits withdrawal during a representation only if
withdrawal can be accomplished without material adverse effect on the interests of the client,” or pursuant to Rule 1.16(c)(10) if the client “knowingly and freely assents to termination of the employment.”
Opinion 1203, ¶ 5. In addition, the opinion recognizes that the rules of the relevant tribunal take precedence:
If permission for withdrawal from employment is required by the rules of a tribunal a lawyer shall not withdraw from employment in a matter before that tribunal without its permission.
Opinion 1203, ¶ 6 (citing NYRPC 1.16(d)).
Practitioners in Kansas and Missouri must comply with similar rules. KRPC 1.16(b) and Missouri Rule 4-1.16(b) both restrict withdrawal to circumstances in which it can be accomplished “without material adverse effect on the interests of the client.” And KRPC 1.16(c) and Missouri Rule 4-1.16(c) state that a tribunal may require an attorney to continue representation “notwithstanding good cause for terminating the representation.”
The essence of the problem of a lawyer suffering from serious anxiety is that she may not be able to function at a level required by Rule 1.1. Anxiety is a serious psychological problem. At its worst, anxiety can render a person unable to do everyday tasks. But even moderate anxiety can affect a person’s judgment. Thus, New York Opinion 1203 advises:
An attorney may withdraw from representation, with the permission of the Immigration Court, based on fear of contracting COVID-19 as a result of in-person appearances in the proceeding, where such fear renders it difficult for the attorney to carry out the representation effectively.
The reasoning of the Opinion makes it clear that it applies not only to immigration hearings but to any hearing before a “tribunal” as defined in NYRPC Rule 1.0(w) (1.0(n) in Kansas and 4-1.0(m) in Missouri).
If one accepts the logic and reasoning in Opinion 1203, then it follows that judges likely will permit lawyers to withdraw because of significant COVID-19 anxiety—except in rare cases where the prejudice to the client is so great as to militate against permitting the lawyer to withdraw. To rule otherwise would potentially harm both the lawyer and the lawyer’s client. In making such a determination, a judge may wish to understand the basis for the lawyer’s request and might ask that a lawyer provide medical documentation to substantiate it.
Opinion 1203 is an advisory opinion issued by the New York State Bar Association and has no binding authority in Kansas or Missouri. But its logic and reasoning should inform any lawyer’s decision as to whether to request leave to withdraw due to coronavirus anxiety—and likewise any judge’s decision regarding whether to permit an attorney with virus anxiety to withdraw.
RANSOMWARE- WHAT IT IS AND HOW TO RESPOND
By Matthew Beal, JD, MCSE, MCP, A+, SEC+
The past several technology articles have outlined the nature of computer security and discussed ways to maintain a safe and stable computing environment that meets the standards imposed by the Rules of Professional Conduct. This column will discuss ransomware, what it is, and how to address it in a way that fulfills Rule 1.6(c)’s directive to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Ransomware refers to both the activity and the tools used to commandeer a user’s computer systems. Intruders may steal data outright or launch processes that prevent the true user from accessing his own data (oftentimes encrypting the data). After a user’s access to data has been hijacked, the intruder makes a demand for payment to restore access.
An unauthorized intrusion onto your computer systems can be malicious or non-malicious. While both attacks can damage your data or computing environment, a non-malicious attack is less focused on obtaining or utilizing user data. Conversely, a malicious attack is targeted to a specific organization’s computing environment. The objective is to obtain or obstruct access to specific data. A malicious intrusion likely represents a significant investment of time and effort. Methods used to obtain unauthorized access to data include email, brute force attacks, utilization of known security problems, or implantation of nefarious code via a web site.
To protect a law firm’s data from attack or intrusion, users should keep client data in a central, secured repository. All employees should be trained on email-based attacks. In addition, the firm should implement policies that minimize the cross-pollination of general or personal use computers and those used to access the firm’s data.
Success in preventing a targeted attack also relies in large part on management of the organization’s computing environment. It is important that the computers maintain the most recent version of patches for the operating systems, security tools, and any ancillary applications. Firms may also consider maintaining current data back-ups offline in order to prevent intruders from rendering data restoration impossible.
ETHICS & MALPRACTICE RESEARCH TIP
THE ABA CENTER FOR PROFESSIONAL RESPONSIBILITY
While advisory ethics opinions do not have binding authority in any jurisdiction, an advisory opinion from any authority will have some value. ABA Ethics Committee advisory opinions are generally given great weight by state authorities. The weight given to other advisory opinions will often depend upon the reputation of the body issuing the opinion, but they all warrant some consultation.
When searching for state opinions, the “Additional Legal Ethics and Professional Responsibility Resources” page on americanbar.org is particularly useful. This site is maintained by the ABA Center for Professional Responsibility and is quite rich in resources for the legal ethics researcher. Its listings of state advisory opinions is immensely valuable.
The site provides links to resources maintained by groups other than the American Bar Association. It has links for professional responsibility resources from each state in the U.S. as well as a list of national sources. In some cases, access to these resources will be limited by the group or entity that has posted them. For instance, the ABA provides a link to Kansas ethics advisory opinions but notes the opinions are “available online only to members of the Kansas Bar Association.” Other states, such as Maryland and Michigan, have similar access restrictions.
The listings for a few states are particularly useful. New York has a number of entities that issue ethics advisory opinions. In some cases, these New York opinions will go into great depth in their analysis of issues, which can be enormously helpful. The ABA website directs researchers to
1) New York Ethics Opinions issued by the New York State Bar Association Committee on Professional Ethics;
2) The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinions starting from 1986;
3) The New York County Lawyers’ Association Ethics Opinions; and
4) The Suffolk County Bar Association Ethics Opinions
among several other resources. California also has an abundance of resources to consult. For advisory opinions, follow the links for:
1) State Bar of California Committee on Ethics and Professional Conduct Ethics Opinions;
2) Los Angeles County Bar Association Ethics Opinions; and
3) San Diego Bar Association Formal Legal Ethics Opinions.
When you have an ethics issue and are looking for advisory opinions, first turn to the ethics advisory opinions from the jurisdiction in which you practice and in which the issue has arisen. After that, look at the advisory opinions issued by the American Bar Association Committee on Legal Ethics and Professional Responsibility. But it is also quite useful to follow these steps by consulting the advisory opinions of other states to determine whether any may be relevant. The ABA Center for Professional Responsibility makes this easy to do.
BLAST FROM THE PAST
LAWYERS ARE OFFICERS OF THE COURT
In 1939, William G. Stathers, then President of the West Virginia Bar Association, gave a speech defending the legal profession against its critics. In that speech, he made a point that is as relevant today as it was then:
The lawyers of each state are the officers of its courts. They determine the moral and educational qualifications of those who seek to enter the profession, admit them to practice, and then have the responsibility for their conduct and discipline. The lawyers are an essential part of the American system of administering impartial justice under law. A legal profession subject to political control or intimidation would be as repugnant to the spirit of our institutions as a politically controlled judiciary, and such control or intimidation of the profession, if attempted, would in fact be an invasion of the province of the courts to regulate the conduct of their officers.
William G. Stathers, The Lawyer–An Appraisement, 46 W. Va. L. Rev. (1939).
Published by JOSEPH, HOLLANDER & CRAFT LLC
Edited by MIKE HOEFLICH