18.02. Duty to file Non-Frivolous Claims/Defenses [Rule 3.1]

A lawyer is ethically prohibited from asserting a claim or defense that is “frivolous.”  A claim is frivolous if the lawyer is unable “to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”[1]  A claim is not frivolous just because the lawyer does not currently have all of the evidence to establish the claim (for example asserting a claim and anticipating obtaining the evidence in discovery) or if the lawyer subjectively believes the client will ultimately lose the case.  In short, if the lawyer can look at the situation and make a good faith argument for a claim they have not violated the obligation to avoid filing frivolous actions/defenses.  A claim is also not frivolous if the lawyer can make a good faith argument for a change (extension, modification, or reversal) in existing law.  For example, lawyers who filed suit challenging the prohibitions on same sex marriage restrictions were arguing for a reversal of existing law.  

Ken Swindle is a lawyer.  His son is in kindergarten.  The son used the “F-word” in school 3 times.  On the third time the school called Swindle and told him that his child would be suspended for the rest of the day and that he should come and pick him up.  Swindlee told the principal that if she suspended the child he would file a lawsuit.  Instead of picking up the child, Swindle prepared a lawsuit and filed it.  He did not pick up the child who served in-school suspension in the principal’s office.  Ultimately the case was thrown out on summary judgment.   Did Swindle act unethically?

[In re Swindle, Arkansas Supreme Court Comm. on Prof’l Conduct (July 26, 2018)]             

Yes.  The Committee notes that Swindle violated Rule 3.1 as “the law of Arkansas was clearly against the position argued.”  The Committee also found that Swindle violated Rule 4.1 as the hastily filed lawsuit in “haste and anger” and it had “no substantial purpose other than to embarrass and burden third persons, the school board and principal….”  The sanction was a public reprimand and an order to pay the school district’s attorney fees in the amount of $7,1200.

[1] ABA Rule 3.1, Comment [2].