Positions That Are Not Frivolous

Rule 3.1 bars a lawyer from bringing or defending a proceeding, or asserting or controverting an issue in one, unless there is a basis in law and fact that is not frivolous, and it adds that this basis includes a good faith argument for an extension, modification or reversal of existing law.¹ The rule sets a floor. A position falls below it when no reasonable lawyer would see merit in it or when its purpose is improper, as the preceding sections explained. A position above the floor is permitted, however risky a careful lawyer may think it. Three kinds of position clear the floor more often than students expect: a claim whose supporting facts are not yet fully in hand, a claim the lawyer expects to lose, and a claim that asks a court to change the law.

Each of the three protects something a working legal system needs. Evidence often sits in the opponent’s files, and discovery exists to pry it out, so a rule demanding full proof at filing would shut out claims that only the process can substantiate. Outcomes stay uncertain even when the lawyer knows the facts and the law, so a rule demanding good odds would make every wrong forecast a risk of discipline. And law changes only when someone asks a court to change it, so a rule demanding settled law would freeze doctrine in place.

Each zone also has an outer edge, and the edge is the question of basis. A promise that discovery will turn something up supplies no basis for a claim with no factual footing. A long shot still needs an argument that a competent lawyer could articulate. A call to change the law needs real support behind it. The label a lawyer attaches to a position therefore decides nothing; the rule asks whether a basis exists. The claim that depends on discovery to fill in its facts shows the pattern most clearly.

Need for Discovery

Rule 3.1 asks whether “there is a basis in law and fact” for a position, and a basis in fact is a lower bar than proof in hand.² A lawyer may therefore file a claim or plead a defense before every supporting fact has been substantiated, including when vital evidence is expected to come out through discovery. Discovery is the pretrial process in which each side can demand documents, written answers, and sworn testimony from the other. The rule tolerates this because in many disputes the evidence that matters most is held by the opponent, and the claimant cannot see it until the case is under way.

A rule demanding the proof before filing would be circular. The claimant would have to prove the allegations to enter a process designed to find the proof, and a person with a genuine claim and no access to the other side’s files would be shut out. The standard avoids that result by asking about the lawyer’s footing at the moment of filing and leaving the final proof to the process. Federal Rule of Civil Procedure 11 measures a filed paper at the same moment: presenting it certifies that its factual contentions have evidentiary support as of the time the paper is presented.³ Evidence that discovery produces later cannot retroactively supply a basis that was missing at filing.

The lawyer in that scene already knew something before filing, and the discovery request was aimed at confirming and quantifying it. The safe zone covers evidence that exists but is out of reach. It does not cover evidence that is merely hoped for, and the usual exam error is to treat “we will find out in discovery” as a password that cures any thin filing.

Both lawyers said they would learn the rest in discovery, and the whole difference lies in what each knew when filing. Discovery works on allegations that already have a foundation; it cannot serve as a search to learn whether any claim exists. A filing built on hope sends the opponent through the expense of answering and producing documents for a claim the lawyer had no reason to think was true, which is the harm the gatekeeping duty exists to prevent.

The timing rule that protects the first lawyer also limits both. A lawyer with a real basis who finds nothing in discovery did not violate Rule 3.1 by filing. But Rule 11 forbids “later advocating” a paper that the presenter now knows to be factually insupportable, even though it imposes no general duty to correct after-acquired information.⁴ Rule 3.1 points the same way, because it reaches a lawyer who asserts or controverts an issue inside a proceeding as well as one who brings the proceeding.⁵

Small Chance of Success

Rule 3.1 permits a position when “there is a basis in law and fact for doing so that is not frivolous,” and the sentence says nothing about how likely the position is to win.⁷ The condition sets a floor of reasonable support and leaves the odds out of the calculation. A lawyer who privately expects a claim to fail has not violated the rule by holding that expectation, because the rule asks whether a basis exists, and a basis can sit beneath a very low chance of success. The preceding sections supplied the test for a missing basis. Probability is the wrong instrument for applying it.

The rule is built this way because legal outcomes are hard to forecast. Judges and juries regularly decide hard questions in unexpected directions, so a rule keyed to probability would punish lawyers for estimates that happened to prove wrong. Lawyers would protect themselves by declining every difficult matter, and the clients with hard but legitimate claims, who most need an advocate, would go unrepresented. The ethic of zealous advocacy points the same direction. The Supreme Court has said of criminal defense attorneys that, in searching for the strongest arguments available, the attorney “must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.”⁸ That latitude ends where the argument stops being non-frivolous.

A harder stem gives a second lawyer who also expects to lose and asks what makes that filing different.

Both lawyers expected to lose, so the expectation cannot be what separates them. What separates them is whether anything reasonable stands behind the position: the first lawyer had a developed argument that some judges have accepted, and the second had nothing. The same distinction explains why minority opinions, decisions from other jurisdictions, and informed scholarly views can support a long shot.⁹ A controlling decision against the claim raises the difficulty without ending the inquiry, because the rule’s own text protects a good faith argument to extend, modify, or reverse existing law, and that safe zone comes next.¹⁰ Students often read a lawyer’s admission that the case is a long shot as an admission of frivolousness. The admission shows only that the lawyer assessed the odds honestly, and the rule asks about basis.

Arguing to Change the Law

Rule 3.1 spells out part of the basis it requires: the basis “includes a good faith argument for an extension, modification or reversal of existing law.”¹² That clause is the safe zone toward which the discussion of long shots pointed. A decision of controlling authority against the client raises the difficulty of the position without ending the inquiry. Controlling authority is a decision of a court whose rulings bind the court hearing the case. A lawyer who has a good faith argument that such a decision should be extended to the client’s situation, modified, or reversed still has a basis in law, because the rule counts that argument as part of the basis.

The rule is written this way because the law changes only when a lawyer asks a court to change it. If an argument were frivolous merely because current law is against it, the first lawyer to challenge any rule would violate the ethics code, and no court would hear a request to revise a doctrine that had proved mistaken or outdated. Doctrine would freeze at whatever was decided last. The clause cannot be an unlimited license, though, because any baseless claim could then be relabeled as a call for reform. Two qualifiers hold it in place: the argument must be made in good faith, and it must have real support behind it. Those qualifiers separate legitimate law reform from simply ignoring law that is unfavorable.

The kinds of support that qualify are the ones a court itself would take seriously. A minority opinion, such as a dissent in the very case being challenged, shows that reasoned judges have found the existing rule wrong. Cases and trends in other jurisdictions show that the rule is losing ground. Law review articles and the informed views of experts in the field show that those who study the rule’s reasoning have found it wanting.¹³ Each gives a competent lawyer something concrete to point to, so the objective test from the earlier sections is met: a reasonable lawyer could see merit because respectable authority already does. The list illustrates the point and is not a closed catalogue, since the question is always whether the argument has substance, never whether it carries a particular label.

The practical question on an exam is what separates a lawyer who may press a claim against controlling precedent from one who may not. The answer lies in whether the lawyer acknowledges the existing law and argues for change.

Hypothetical Illustration

A state’s highest court held two years ago that a parent who learns of a child’s injury by telephone cannot recover for emotional distress, and that only a parent who witnessed the accident can. Two lawyers each bring such a claim for a parent who learned of a crosswalk collision by phone. Ortiz cites the decision in the opening papers, concedes that it forecloses the claim unless the court revisits it, and asks the court to overrule the presence requirement. Ortiz supports the request with a dissent in that very case, decisions from six other states that abandoned the requirement, and a law review article criticizing it. Brandt files the same claim, says nothing about the decision, and asserts that the law gives recovery to any parent who suffers serious distress. Ortiz has a good faith argument for reversal of existing law, so the claim is not frivolous. Brandt offers no argument for change, and the claim rests on a statement of law that the controlling decision contradicts. His silence also raises a separate problem about authority the court was entitled to see.

That separate problem is the duty to disclose adverse authority. Lawyers may be ethically bound under Rule 3.3(a)(2) to disclose to the court adverse authority in the controlling jurisdiction, and this chapter touches that rule only where it meets Rule 3.1.¹⁴ The disclosure duty does not stop a lawyer from making non-frivolous arguments to change that authority.¹⁵ The two duties work together, because an argument for change presupposes the law it challenges. A court cannot weigh a request to revise a rule it has not been told exists, and a lawyer who makes the request has necessarily put the rule on the table. Ortiz’s candor is therefore what makes his argument a legitimate attempt to change the law, while Brandt’s silence leaves him with nothing but a false statement of what the law is.

Students tend to err in two directions here. Some read disclosure of adverse authority as a concession that the claim is frivolous, when disclosure is a duty owed to the tribunal and leaves the lawyer’s position intact. Others treat “change the law” as a password that rescues any claim against precedent, the same mistake as treating “we will find out in discovery” as a cure for a thin filing. The clause protects only an argument with real support. A lawyer who says the client wanted to test whether the law might change, and who identifies no dissent, no other jurisdiction, and no scholarship, has no basis at all.