By Steve Berenson
Klinedinst PC
Every lawyer knows it is unethical to file a frivolous lawsuit. However, the answer to the question of whether a lawsuit — or a defense to one — is frivolous, is not always easy or obvious.
The recent spate of lawsuits challenging the results of the 2020 election has brought renewed attention to this longstanding issue. While a detailed discussion of all such lawsuits that have been filed throughout the country is beyond the scope of this article, a brief review of a lawsuit filed in Michigan, which exemplifies such suits, is a worthwhile place to start.
In Michigan, the plaintiffs sought declaratory and injunctive relief to overturn the results of the state’s 2020 presidential election on the grounds of “widespread fraud in the distribution, collection and counting of ballots…,” as well as the “manipulation of ballots through corrupt election machines and software[.]”[1] In ruling against the plaintiffs, the court found that several legal theories prevented the court from having jurisdiction to address the plaintiffs’ claims, including: Eleventh Amendment immunity; mootness; laches; abstention; and standing.[2] The court also rejected the plaintiffs’ request for injunctive relief on the merits, stating that plaintiffs offered “nothing but speculation and conjecture that votes for President Trump were switched to votes for Vice President Biden[.]”[3]
Subsequent to the court’s decision, the defendant, the City of Detroit, filed a motion for sanctions against the plaintiffs’ lawyers for, among other things, violating F.R.C.P. Rule 11’s requirement that “the claims, defenses, and other legal contentions [in the pleading] are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law[.]” F.R.C.P. 11(b)(2). Ironically, among other arguments, plaintiffs’ lawyers contended they could not be sanctioned under Rule 11 because their typewritten signatures on the pleading did not actually satisfy Rule 11’s “signature” requirement. F.R.C.P. 11(a). The motion for sanctions remains pending.
Like California, Michigan has adopted a version of ABA Model Rule of Professional Conduct 3.1, which states that “[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.”[4] Thus, the lawyers for the Michigan plaintiffs may also be subject to discipline by the state bar, in addition to any sanctions from the court, if it is found they lacked a good faith, nonfrivolous basis for the lawsuit.
Bringing matters closer to home, California has also enacted a statute, Code of Civ. Proc. § 128.7, which imposes requirements similar to F.R.C.P. 11 on California attorneys with regard to pleadings and motions filed in state court.
While the Michigan case may provide an easy example of when a lawsuit lacks a good faith basis, other cases fall much closer to the line. After all, interpreting good faith pleading requirements too narrowly risks “shutting the courthouse door” on meritorious claims or defenses which simply require more time to develop than statutes of limitations or other filing deadlines might allow. There is no requirement that legal claims and defenses must be entirely developed before being asserted. The discovery process exists to allow parties to uncover evidentiary support for claims and defenses after the litigation process has begun.
One important question that comes up frequently in determining where to draw the line between frivolous and nonfrivolous claims and defenses, is whether an attorney is entitled to rely solely on the assertions of a client when setting forth a legal claim or defense. A recent California Court of Appeals decision, from the related context of malicious prosecution, reminds us that while an attorney is entitled to rely upon the representations of a client, an attorney may not continue to do so once the attorney has learned of facts which call into question the validity of the client’s account.
Golden State Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, involved a malicious prosecution action against an attorney. In the underlying case, the attorney filed suit on behalf of a client for, among other claims, violations of the Unruh Civil Rights Act when a delivery truck blocked access to a handicapped parking space which allegedly prevented the client from accessing a restaurant. Id. at 28. It became clear over the course of the lawsuit that the business the client was purportedly barred from accessing was closed at the time of the alleged incident. Therefore, this necessary element of the underlying claim could not be satisfied. Id. at 36. Despite this knowledge, the attorney persisted in trying the case to an unsuccessful verdict. Id. at 28.
One of the elements of a malicious prosecution claim is that the underlying case “lacked probable cause.” Id. at 33. This standard overlaps with the “non-frivolous” requirement of Rule 3.1 and § 128.7. The court found that while attorney Schloss may have been justified in relying on his client’s representations in bringing the case initially, once it became clear that the client was not, in fact, deprived of access to a place of public accommodation, Schloss should have realized the case had no merit and dismissed it. Id. at 34.
While an attorney may rely upon what appear to be the good faith representations of their client when bringing or defending a claim, counsel may not take an “ostrich approach” to investigating the facts that underlie a claim or defense. Once an attorney becomes aware of facts that call into question the validity of a client’s claims, the attorney must revisit the question of the validity of the claim. “Trust, but verify,” as President Ronald Reagan once said.
[1] King, et al. v. Whitmer, et al., Civil Case No. 20-13134, at p. 4 (E.D. Mich. Dec. 7, 2020).
[2] Id. at pp. 8-30.
[3] Id. at p. 34.
[4] The wording of the California rule is slightly different, as it carries forward the language from former California Rule of Professional Conduct 3-200, but there is no substantive difference between the rules.
Great analysis, Steve! Very timely and enlightening.