The Core Prohibition

Meritorious Claims and Contentions

The Core Prohibition

Model Rule 3.1 governs every position a lawyer takes in litigation: 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."¹ The sentence pairs one prohibition with one condition that lifts it. The prohibition covers filing a proceeding and taking positions inside it, and the condition is a basis in both law and fact that is not frivolous. The text adds that a good-faith argument for extending, modifying, or reversing existing law counts toward that basis, a point this chapter takes up later.²

The requirement of a basis in both law and fact closes two separate gaps. A polished legal theory resting on invented facts wastes the opposing party's money, the witnesses' time, and the court's attention just as surely as true facts that fit no legal theory at all. The lawyer is the one person who sees a position before those costs are incurred. The rule bans frivolous positions rather than demanding strong ones, so the lawyer's screening task is to ask whether a basis exists, not whether the client will win.

The words "bring or defend" put both sides of a case under the rule. A plaintiff's lawyer who files a claim and a defendant's lawyer who answers one are equally bound, so an answer is not an automatic denial of everything alleged. The words "assert or controvert an issue therein" carry the rule inside the proceeding, where it reaches each separate contention: a defense raised in the answer, a ground stated in a motion, an argument made in a brief. A sound complaint therefore protects nothing that follows, because the lawyer must test every position for a basis in law and fact.

Rule 3.1 is an ethics rule, so a violation exposes the lawyer to professional discipline through the licensing authority. A court has its own power to sanction a frivolous filing under Federal Rule of Civil Procedure 11. The two rules overlap heavily but run on separate tracks.³ One groundless claim can therefore bring both discipline and a litigation sanction, and the later part of this chapter covers how the court-sanction track works.

A lawyer who has not looked at the facts or the governing law cannot know whether a basis exists, and so cannot claim to have taken a position in good faith. The safest practice is a short inquiry before each position.

The inquiry starts over each time a new contention enters the case, since the rule reaches issues as well as proceedings. On an exam, a stem that puts a defense lawyer or a mid-case motion in front of you is testing the "defend" and "assert or controvert" language, so do not assume the rule polices only complaints.