Meaning of Frivolous

Model Rule 3.1 permits a position only when "there is a basis in law and fact for doing so that is not frivolous," so the whole duty rides on a word the rule never defines.¹ A student who reads "frivolous" as "weak" or "unsuccessful" will misjudge two familiar scenes: the long shot that loses, and the colorable claim filed for a bad reason.

A position can be frivolous in two distinct ways. It can lack legal or factual merit, in which case the question is how a reasonable lawyer would regard the position itself. Or it can be taken for the wrong reason, primarily to harass or maliciously injure someone, in which case the question is why the lawyer acted. The first route examines what the lawyer asserted, and the second examines what the lawyer was trying to accomplish. Who wins in the end settles neither.

The merit route comes first, because it supplies the objective test on which the rest of the analysis depends.

Lack of Legal or Factual Merit

The merit route asks one question: would a reasonable lawyer, looking at the governing law and the available facts, see any merit in the position? If so, the position has a basis even when it is a long shot. If not, the position is frivolous, either because no argument a competent lawyer could articulate supports it under the law or because no fact stands behind it. The test looks for a reasonable argument, and the outcome of the case plays no part. A good-faith argument for extending, modifying, or reversing existing law also supplies a basis, a point the chapter develops below.²

The standard has two features, and each serves its own purpose. The first is objectivity. If the test were the lawyer's sincere belief, any lawyer caught with a baseless claim could say it seemed sound, and the opponent would still have paid to answer it. Measuring the position against what a reasonable lawyer would conclude removes that escape and ties the duty to the thing that causes the harm. The second feature is the low threshold. The test asks whether any reasonable lawyer could see merit and never whether the position will win. That threshold spares a lawyer who takes a debatable stand from discipline every time a court disagrees, and it keeps the rule from chilling the arguable claims that courts exist to decide. The first feature tightens the rule and the second loosens it, so an exam question on this topic usually tests which of the two the facts engage.

The common error is to treat a lost motion or a dismissed claim as proof of frivolousness. A ruling against a position shows only that the court found the opposing argument stronger. The rule asks a different question about the same position: whether any reasonable argument stood behind it when the lawyer took it.

The dismissal in that scene would look identical if the lawyer had sued on a dead statute, which is why the line cannot be drawn by looking at the result. What separates the two situations is whether any reasonable argument existed for the position.

The same analysis runs on the factual side. Suppose a defense lawyer pleads the statute of limitations while holding dated records that show the plaintiff sued on time. No reasonable lawyer would see a factual basis for that contention. A defense that rests on a fact the client credibly asserts and the lawyer reasonably believes keeps its basis even if the factfinder later rejects it, because the factfinder's rejection is again an outcome. What a lawyer may do when the facts are credible but not yet fully proved is taken up in the next section.

Federal Rule of Civil Procedure 11 measures filings in federal court against a similar objective yardstick. It defines a form of legal malpractice built on an objective negligence standard, so a violation does not require bad faith, and a lawyer's good faith is no defense to it.³ The parallel follows from the same logic: in both rules the question is how the position looks to a reasonable lawyer who has examined the law and the facts, so a sincere explanation cannot rescue a position that no reasonable lawyer would take. The mechanics of Rule 11, including the inquiry it requires and the procedure for sanctions, are taught later in this chapter.

Improper Purpose

A position can pass the merit test and still be frivolous because of the reason it was taken. This second route asks why the lawyer acted instead of what the lawyer asserted, and it condemns a position taken primarily to harass or maliciously injure another person. The merit test looks at the content of the paper, while the purpose test looks at the use the lawyer is making of the proceeding.

The black-letter text of Rule 3.1 speaks only of a basis in law and fact and says nothing about motive.⁵ The purpose strand enters through the rule's commentary and through Rule 4.4(a), which forbids a lawyer representing a client to use means that have no substantial purpose other than to embarrass, delay, or burden a third person. Rule 4.4(a) reaches any means a lawyer uses, including a filing, a deposition notice, or a threatening letter, so it covers conduct outside Rule 3.1's focus on proceedings and contentions.

The reason to look at purpose is that a proceeding can be used as a weapon. The costs of being sued, in defense fees, delay, and embarrassment, fall on the opponent whether or not the claim ever wins. A lawyer whose real aim is to impose those costs is lending a neutral dispute-resolution tool to a campaign of injury. A merits test alone would miss some of that conduct, because a claim with a thin but colorable legal basis can clear the objective test and still be pursued only for its cost-imposing effect. The word "primarily" keeps the purpose test workable. Nearly every litigant dislikes the opponent, and a rule that condemned any hostile motive would taint almost every suit. The question is whether the injury is the lawyer's main object or the remedy is.

The common error is to treat a client's anger as improper purpose. A client's resentment, standing alone, does not make a position frivolous.

The analysis changes when the lawyer's own conduct shows that injury is the object. A lawyer's say-so cannot establish purpose either way, so purpose is shown by objective facts: what the lawyer's file reveals, what relief the filing actually seeks, and how the lawyer responds to offers that would give the client everything the law allows.

Federal Rule of Civil Procedure 11 draws a close parallel. Presenting a paper to a federal court certifies that it is not presented for an improper purpose. Some circuits hold that a non-frivolous paper cannot have an improper purpose, but the majority rule is that even a non-frivolous paper can have one when that purpose can be inferred from objective facts.⁶ The majority view reaches the same practical ground as the purpose route under the Model Rules, since a legally sound filing is not immune once the surrounding facts show that harassment was its real function.