Some clients want to hire lawyers who will zealously defend or pursue the clients’ legal interests. Clients may even seek out lawyers who have an aggressive personality, wanting a tough lawyer to diligently and passionately litigate on their behalf. Some lawyers chalk some of these characteristics up to an individual practitioner’s style, but there are lines that can be crossed.

Indeed, lawyers who engage in frivolous litigation can face severe consequences. In recent months, the legal headlines have shown that courts are becoming more willing to hold lawyers and their clients jointly and severally liable for attorney’s fees as a result of frivolous litigation.

What was once a draconian result—in light of the longstanding “American rule” by which litigants are usually responsible for their own fees—is more common given demanding dockets and courts’ apparent frustration with lawyers who pursue baseless litigation to settle their clients’ scores.

For some zealous advocates, this may sound like an unnerving development. Although courts usually can tell the difference between zealous advocacy and frivolous litigation, there are steps that lawyers can take and questions that they can ask to make sure they’re not crossing the line.

Because lawyers themselves may be responsible for paying attorney’s fees upon a finding of vexatious litigation, it may behoove them to consider some of these issues at various stages of a litigation.

Before the Lawsuit

Rule 3.1 of the ABA Model Rules of Professional Conduct details a lawyer’s obligations when pursuing or defending a claim. A lawyer may not file a lawsuit or conduct a defense “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.”

Thus, before a lawsuit is filed or a defense raised, lawyers can consider whether their clients are asking them to use the courts for a frivolous purpose. 

Notably, although lawyers have a duty not to abuse legal procedure, the comments to Rule 3.1 recognize that this issue is not always black and white. For example, comment [2] confirms that a lawsuit or defense is not frivolous “merely because the facts have not first been fully substantiated” or because the lawyer expects to need discovery to support a claim.

This can be an area where lawyers may want to screen their clients to confirm that clients are not seeking to use the courts for improper purposes. A lawyer who has a good-faith basis for proceeding with a case typically has not violated any obligations.

But if a client suggests they have a personal vendetta or a desire to litigate no matter what the facts are, that may be a red flag that could give rise to further follow-up by the lawyer before proceeding, given the serious potential risks.

During the Lawsuit

It is recognized that the merits of a case or defense may not be completely known until the parties engage in discovery. Thus, as noted above, a lawyer is generally permitted to proceed where the lawyer has a good faith basis for doing so and reasonably believes that additional facts in discovery will support relief.

However, once the lawyer is in discovery, the lawyer may have a duty to ascertain whether the claim still has merit. Some state bar rules recognize that if a lawyer later discovers that the lawsuit has no merit, the lawyer should dismiss the lawsuit (or withdraw from the matter).

For instance, if the facts developed in discovery completely contradict the allegations of the case or if the lawyer learns that the client is pursuing litigation solely to harass an opponent, the lawyer may need to consider having a difficult conversation with the client.

Although the legal profession is client-centered and service-minded, counsel is generally not permitted to hide behind the demands of clients as an excuse for engaging in conduct that potentially violates their legal and professional obligations.

From a risk management perspective, it may be prudent to take a candid look at how a representation is going to assess the reasonableness of the positions being taken. Moreover, if a client is acting unreasonably or is asking a lawyer to pursue claims that wholly lack merit, the lawyer may need to consider whether the representation can continue.

After the Lawsuit

If a court dismisses a lawsuit or defense on the grounds that it is frivolous, a lawyer may also face liability for a share of attorney’s fees. When faced with such a sanction, lawyers can consider whether the development should be disclosed to their malpractice insurance carriers.

Most professional liability policies do not typically provide coverage for attorney’s fees or sanctions, but lawyers can consider whether they have an obligation to report circumstances that could potentially lead to a claim.

Indeed, it could be that a client who has received this same sanction may argue that the lawyer is to blame or that the lawyer committed malpractice by mismanaging the case (or by failing to inform the client that the litigation was vexatious). The lawyer may also consider consulting with the law firm’s general counsel or risk management team in these circumstances.

By considering the above issues, lawyers can help ensure that zealous advocacy does not cross the line.