Concept
Neighboring Litigation Rules
Ethical duty to bring only meritorious claims and contentions (Model Rule 3.1)
Neighboring Litigation Rules
Model Rule 3.1 polices the positions a lawyer takes in a proceeding. It forbids bringing or defending a proceeding, or asserting or controverting an issue in it, unless there is a basis in law and fact that is not frivolous.1 Everything taught so far in this chapter, from the objective merit test to the criminal-defense exception, asks whether a claim, a defense, or a contention can be justified. Abuse of the litigation process does not always take that form. A lawyer can file a sound complaint and then misuse the tools that surround it, or can litigate a defensible case so slowly that it stalls for years. Two other rules of professional conduct reach those situations, and each borrows part of Rule 3.1's logic while examining a different kind of act.
Rule 3.4(d) carries the idea of frivolousness into pretrial practice by prohibiting frivolous discovery requests, including requests made merely to delay. Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the client's interests. All three rules guard against litigation that costs other people time and money without serving a legitimate end, and that shared aim is why they blur together on an exam. A stem about a baseless document demand meant to wear down an opponent tempts a student to answer under Rule 3.1, when the act being judged is a discovery request and a different rule governs it. A stem about repeated continuances on a perfectly respectable claim cannot be answered under Rule 3.1 at all, because nothing about the claim is groundless.
Sorting the rules takes two questions, asked in order. First, what did the lawyer do: take a position, make a discovery request, or control the pace of the case? Second, what does the rule measure?
| Rule | Act it examines | Question it asks |
|---|---|---|
| 3.1 | A claim, defense, or contention | Is there a basis in law and fact that is not frivolous? |
| 3.4(d) | A pretrial discovery request | Is the request frivolous? |
| 3.2 | The pace of the case | Has the lawyer made reasonable efforts to expedite, consistent with the client's interests? |
The discovery rule comes first below, and the rule on pace follows. Each is taught for what it adds to Rule 3.1 and for the point at which its analysis parts ways with the one you already know.
Frivolous Discovery
Rule 3.4 of the Model Rules collects several duties that govern a lawyer's conduct in pretrial procedure and at trial, and paragraph (d) extends the idea of frivolousness to discovery by prohibiting a frivolous discovery request.2 A request that has no legitimate connection to the case, or that is made merely to delay the case or burden the opponent, is the clearest target. Discovery is the pretrial stage at which each side can demand documents, written answers, and sworn testimony from the other. The earlier discussion of claims that need discovery showed why the process is valuable: it lets a lawyer with a genuine basis retrieve evidence that sits in the opponent's files. The same power that makes discovery useful makes it dangerous to leave unpoliced.
The danger comes from an imbalance in cost. Writing a request takes the sender little time, while the recipient must search its records, review what it finds, and assemble a response, and that work can cost far more than the request did. A lawyer who wants to wear down an opponent or push back a trial date can do so cheaply, with requests that no legitimate need explains. The cost lands on the recipient whatever the requests would reveal, so the tactic works even when the sender expects nothing useful to come back. A rule aimed at this stage lets the profession police the tool where it is most easily turned into a weapon.
Rule 3.1 does not reach a discovery request as such. It speaks of bringing or defending a proceeding and of asserting or controverting an issue in it, and a request for documents is neither.3 A request is a step taken while a proceeding is already pending. The two rules therefore divide a case by stage and by object. Rule 3.1 asks whether a claim, a defense, or a contention has a basis in law and fact, and Rule 3.4(d) asks whether a particular pretrial request has a legitimate place in the case. A sound complaint satisfies the first inquiry and guarantees nothing about the second.
The instinct that costs students points here is to call any heavy request frivolous. The test does not turn on how much work the response will take. It turns on whether the request has a legitimate connection to the case and on whether the circumstances show that delay was its only object. The same reasoning appeared in the discussion of improper purpose under Rule 3.1, where objective facts, such as the absence of any link to the real dispute, reveal the lawyer's aim.
The two scenes differ in the connection between request and case, while the burden of responding is the same kind of burden in both. That is why burden alone settles nothing. A responding party who thinks a relevant request has gone too far can object in the case, since many provisions of Rule 3.4 duplicate other law, including the rules of procedure, and a discovery dispute often has a court-enforced route alongside the ethics route.4
Because the rules attach to different acts, a single course of conduct can implicate both.
A request meant only to delay also slows the case, which leads to the second neighboring rule. On an exam, identify what the lawyer actually did: took a position, made a pretrial request, or controlled the pace. The answer points to the rule, and a stem may call for more than one.
Expediting Litigation
Rule 3.2 of the Model Rules requires a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client.6 The rule shifts attention from the position a lawyer takes to the speed at which the lawyer moves the case, which is why it sits apart from Rule 3.1 and from the discovery rule. A duty about pace exists because delay harms people who did not choose it. The opposing party waits for relief or vindication while costs pile up, and the court's docket backs up behind every case that drifts. A lawyer controls many of the levers that set a case's tempo, including continuance requests, extensions of deadlines, and the timing of filings, so the profession has a stake in how those levers are used.
The last clause of the rule, however, takes back much of what the first part gives. The duty to expedite runs only as far as it is consistent with the client's interests, so a lawyer must hurry only when hurrying costs the client nothing. A client who wants more time ordinarily has an interest in getting it: a party may need time to assemble evidence, may hope circumstances improve, or may simply prefer a later reckoning. A lawyer who seeks delay at the client's request can therefore almost always say that the delay serves the client. For that reason the rule is widely regarded as toothless: it asks the lawyer to move the case along and then excuses delay whenever the client's interests point the other way.7
The contrast with Rule 3.1 shows why the qualifier matters. Rule 3.1 sets a floor that does not depend on what the client wants, because a position needs a basis in law and fact whatever the client prefers.8 Rule 3.2 bends toward the client's wishes, because its measure is the client's interest. A stem about repeated continuances on a respectable claim therefore cannot be resolved under Rule 3.1, and under Rule 3.2 it turns on a single question: whom does the delay serve?
Both lawyers asked for more time, and the opposing side bore a cost in each scene. What separates them is who benefits from the delay. The first request helps no one but the lawyer, which leaves the qualifier nothing to protect. The second advances the client's case, which is exactly what the qualifier shelters. The usual exam error is to answer that any delay burdening the opponent violates Rule 3.2. The rule asks whether the delay is consistent with the client's interests, and the burden on the other side does not decide that question.
The qualifier also explains why a violation of Rule 3.2 rarely stands alone as grounds for discipline. Nearly every delay can be defended as serving the client, so the facts that would establish a violation are hard to find. When delay really is indefensible, the court watching the case has its own response, because a lawyer who engages in unjustified delaying tactics can be sanctioned in the litigation itself.9 The judge sees the stalling as it happens and can act in the case, while the licensing authority arrives later through a separate process. Other rules also reach delay when it is bound up with something worse: a baseless claim kept alive violates Rule 3.1, and discovery requests made merely to delay fall under the frivolous-discovery rule taught above. That leaves Rule 3.2 as a backstop for pace alone, and a weak one, since Rule 3.1 holds regardless of what the client wants while Rule 3.2 yields to the client's interests.