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. 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.
[1] 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.
[2] 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 good faith argument for an extension, modification or reversal of existing laws.
[3] The lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.
South Carolina Rule 3.1 and its comments are identical to Model Rule 3.1.
■ For malicious prosecution, see Rule 1.1, Annotation |
» Non-Meritorious Assertions in Litigation
It is a lawyer's ethical duty not to bring or defend an action or raise or challenge an issue unless there is a non-frivolous basis for doing so. Rule 3.1. See In re James, 267 S.C. 474, 229 S.E.2d 594 (1976) (lawyer sued insurer without first making a good faith attempt to collect insurance without litigation). In In re Ruffin, 363 S.C. 347, 610 S.E.2d 803 (2005), the court found that the attorney did not violate Rule 3.1 in filing a RICO claim when RICO was not within the attorney's area of expertise and he relied on the advice of counsel that the claim was meritorious. However, in In re Young, 371 S.C. 394, 639 S.E.2d 674 (2007), the court administered a public reprimand to a lawyer who presented himself as a RICO expert but who had no facts supporting his RICO claim and who failed to conduct any legal research before filing the complaint. Any disciplinary punishment for violation of Rule 3.1 may be in addition to a sanction imposed by the court under SCRCP 11(a), 37, or other applicable rules.
Rule 3.1 does not preclude "a good faith argument for an extension, modification or reversal of existing law." Comment 2 to Rule 3.1 also clarifies that a matter 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," nor is a matter automatically deemed frivolous merely because the lawyer did not believe the client...
