RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS

Obsolete Date: 8/1/2006

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.

COMMENT

Allegations and denials in any pleading, made without reasonable cause and not in good faith, may subject the lawyers who plead them, and their clients, to prejudice. Such pleading is unprofessional conduct. A lawyer's signature on a pleading, motion or other paper certifies to the court that the lawyer has read it, that to the best of the lawyer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. A lawyer whose certification is found to have been false has misused the legal system and its procedures and has acted unprofessionally.

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.

Pleading and other documents prepared for and used in litigation on a client's behalf are not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence through discovery. Such documents are not frivolous even though the lawyer believes that the client's position ultimately might not prevail. A document is frivolous, however, if the client desires its preparation and use primarily for the purpose of harassing or maliciously injuring another, or where regardless of the good faith of the attorney or client responsible for the document there is such a complete absence of actual facts or law in support of the document that a reasonable person could not have thought that a tribunal would render a favorable judgment upon it.

The duties of a lawyer are also governed by Rule 11, N.D. Rules of Civil Procedure, and sections 28-26-01 and 28-26-31, N.D.C.C.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 09/20/85, 11/08/85, 12/13/85 and 01/31/86