Washington Lawyer - January/February 2022 - 17

FEATURE
In its analysis, the court held that the Kraken team fell afoul of three
requirements relating to diligence in the course of their litigation by
failing to check the validity of claims before presenting them to the
court, to advance only tenable claims, and to proceed with good faith
and proper purpose. In addition to awarding attorney's fees to the state
for costs incurred defending itself against the litigation brought by
Powell and others, the court also directed the attorneys to complete at
least 12 hours of continuing legal education on pleading standards and
election law and referred the matter to the appropriate disciplinary
authority in the jurisdiction(s) where each attorney is admitted for
possible suspension or disbarment.
WHERE THINGS GET MURKY
The District of Columbia Rules of Professional Conduct contain a parallel
provision to Rule of Civil Procedure 11(b) regarding the representation of
clients with diligence and zeal " within the bounds of the law. " Comment
[3] of D.C. Rule 1.3 recognizes the inherent challenges, however:
The bounds of the law in a given case are often difficult to ascertain.
The language of legislative enactments and judicial opinions may
be uncertain as applied to varying factual situations. The limits and
specific meaning of apparently relevant law may be made doubtful
by changing or developing constitutional interpretations, ambiguous
statutes, or judicial opinions, and changing public and judicial
attitudes.
Comment [4] distinguishes between an attorney's role as an advisor and
as an advocate, providing slightly greater latitude in the former capacity,
but reinforcing the constraint that an attorney " may not institute or
defend a proceeding unless the positions taken are not frivolous. "
Saul Singer, D.C. Bar senior legal ethics counsel who frequently speaks
and writes on the topic of professional responsibility, says that attorneys
frequently make inquiries regarding whether or not an argument is
frivolous.
Commenting only on the D.C. Rules - which he makes clear are different
in many respects from the rules applicable in other jurisdictions
- Singer references Rule 3.1 (Meritorious Claims and Contentions) as
the ethical guidepost for making a determination regarding whether
a lawyer may " bring or defend a proceeding, or assert or controvert an
issue therein. " The rule also permits " a good-faith argument for an extension,
modification, or reversal of existing law. "
" The standard is a very low one, but not a nonexistent one as some
lawyers try to pretend, " says Singer. " On one hand, we don't want lawyers
walking away from what they perceive to be losing arguments, and we
don't want lawyers declining cases that they think are likely losers. On
the other hand, if it's 100 percent clear that there is no basis in law or fact
for asserting the fact or making the argument, then for a lawyer to
proceed would be a violation of Rule 3.1. " In such circumstances, the
attorney would have an ethical duty not to proceed, even if ordered to
do so by the client, he adds.
For those seeking a bright-line definition, Singer points out that the
question of whether an argument is frivolous is a question of fact, and
one that requires case-by-case analysis. He agrees that what constitutes
" good faith " is open to interpretation. " I think of a good-faith argument
the way the Supreme Court has defined pornography . . . I know it when
I see it. There is no precise set of parameters to determine whether and
when an argument is made in good faith, although there may be some
case law on that question, but it's always very fact-specific, " Singer says.
Attorneys have some degree of latitude within which to work. Singer
says that as long as there is some basis in fact and law for the filing, an
attorney attempting a creative or aggressive litigation strategy ordinarily
will not be deemed to have committed an ethical violation. " We want
lawyers making every reasonable argument they can on behalf of the
client, even if it's a losing argument, " says Singer.
However, just because an argument is permitted under Rule 3.1 does not
mean that the lawyer must make it. Singer says an attorney may decide
not to make a particular argument despite its being on the right side of
Rule 3.1 because the lawyer believes that, from a tactical perspective, it
might adversely impact other positions and arguments that he or she is
seeking to advance.
CLIENTS WHO PUSH THE BOUNDS
In the Kraken litigation, the attorneys themselves generated and pursued
the legal strategies that resulted in sanctions, but in many circumstances
clients exert the pressure to pursue questionable litigation tactics. Clients
may want lawyers to engage in harassing litigation against opponents or
to passionately support legal and factual positions that are untenable in
court. In some cases, particularly in an environment where prominent
individuals are increasingly advancing novel legal theories, clients may
lobby for the deployment of arguments, assertions, or tactics that flirt
with frivolousness.
Clients may want lawyers to engage
in harassing litigation against
opponents or to passionately support
legal and factual positions that are
untenable in court.
The authority to direct the larger litigation strategy is an important part
of understanding how to manage disputes with clients. D.C. Disciplinary
Counsel Hamilton P. Fox III offers a simple formulation that can help
attorneys navigate the allocation of decision-making power between
attorney and client. " The client sets the goals of litigation, " Fox says, " and
the attorney determines the strategy, though he or she must consult
with the client. "
In the event of an impasse, the client always has an unqualified right
to pursue alternative representation, though ideally any other attorney
consulted would also decline to pursue a frivolous claim, Fox says.
Thomas B. Mason, a partner at Harris, Wiltshire & Grannis LLP whose
practice focuses on legal ethics and malpractice, says that disputes
over legal strategy are just one of many different aspects of the
JANUARY/FEBRUARY 2022
* WASHINGTON LAWYER 17
Washington Lawyer - January/February 2022

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