ProfessionalResponsibilityProfessionalResponsibility BY MARTIN COLE Frivolous Litigation

rivolous litigation is one of those areas in the law where we “know it when we see it,” Feven if we cannot provide a perfect defi nition. Everyone has heard anecdotal stories of cases that get labeled as the most frivolous lawsuits of all time, some accurate (there was indeed a lawsuit fi led against McDonald’s for its too-hot coffee1) and some, while repeated at length, not accurate. Rule 3.1, Minnesota Rules of Professional Conduct (MRPC), is entitled “Meritorious Claims and Contentions,” and states that a lawyer do something” about lawyers who repeatedly have initiated similar, shall not bring or defend nonmeritorious cases, despite repeated a proceeding, or assert or rejection and criticism from the courts. Rules of Civil Procedure, Rule 26 controvert an issue therein, As lawyers, we are familiar with various discovery standards, or Minn. Stat. unless there is a basis in law restrictions on frivolous litigation and §549.211. While there is obviously and fact for doing so that is not we are also familiar with the sanctions signifi cant overlap (Minn. R. Civ. P. frivolous, which includes a good that can be imposed by the courts for 11.02(b) and 11.03, for one example, faith argument for an extension, frivolous litigation. But sanctions authorize sanctions for claims that modifi cation, or reversal of presume that fi ndings that a lawsuit, are unwarranted by a nonfrivolous existing law. (emphasis added.) motion or pleading is indeed frivolous argument), there are also technical already have been made. Is control of differences as to verifi cation and While perhaps not a model of “plain this issue thus limited to the courts? opportunities to rectify. Rule 3.1, English,” the rule provides at least Perhaps it is a good time to review the MRPC, can be applied to situations in some substance to the term that is disciplinary standards and assess how any proceeding and covering any issue, relatively easy to grasp. But it still the lawyer discipline system also is an which may be beyond the scope of the does not attempt to defi ne “frivolous,” appropriate part of the answer. Rules of Civil Procedure. instead using the term to help defi ne It nevertheless is true that a majority “meritorious” or nonmeritorious.2 History and Case Law of such matters that come before the This lack of clarity may not be all Discipline rules prohibiting lawyers Director’s Offi ce for possible discipline that signifi cant except, based upon my from making frivolous claims or have already been the subject of some conversations commencing frivolous litigation have court action and ruling. For example, with judges and long been part of professional conduct among the lawyers publicly disciplined lawyers around standards. Over 100 years ago, the for frivolous claims or litigation, an the state, many 1908 Canons of Ethics contained the attorney was indefi nitely suspended for people seem following assertion in language typical a minimum of 90 days4 following civil to perceive of the day: “The responsibility for and appellate fi ndings in three related that frivolous advising questionable transactions, for cases.5 Court action had included litigation in bringing questionable suits, for urging summary judgment against the lawyer’s Minnesota is questionable defenses, is the lawyer’s client and sanctions against the lawyer MARTIN COLE on the rise. responsibility. He cannot escape it personally. Such a pattern of frivolous is director of the Several well- by urging as an excuse that he is only matters, with court sanctions imposed, Offi ce of Lawyers publicized cases following his client’s instructions.”3 presents the most straightforward Professional Respon- have generated The former Code of Professional basis for discipline. Other situations sibility. An alumnus substantial Responsibility DR 7-102(A) carried on can result in discipline as well. For of the University of comment from such a prohibition, making it a clear example, Rule 3.1, MRPC, can apply Minnesota and of the Minnesota basis for professional discipline. Since to attorneys acting pro se, not just at University of Min- lawyers and 1985, Rule 3.1, MRPC, has retained the client’s direction. An attorney was nesota Law School, regular inquiry that privilege. sanctioned by the court for frivolous he has served the as to whether Many lawyers incorrectly assume motions brought in his own marital lawyer disciplinary the disciplinary that Rule 3.1, MRPC, is completely dissolution matter; this conduct was system for 25 years. system is coextensive with other federal or then part of the disciplinary proceedings going “to state standards such as Rule 11 of the against the attorney.6

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Not every instance in which a court matters before multiple courts or even issues sanctions against an attorney, in multiple jurisdictions: situations such as for some delay in responding to where any one court may not be aware discovery requests, automatically will of the magnitude of the problem, or result in discipline—even if complained limited in its ability to hold the lawyer about to the Director’s Ofice. accountable for actions taken outside Reasonable discretion is applied. But the presence of the particular judge or also note that a matter in which there court. In such situations, if the Direc- is no civil sanction, even where such tor’s Ofice becomes aware of such a sanctions were sought, can still result in pattern of conduct, it can seek appro- discipline in appropriate circumstances.7 priate sanction (discipline) against the Finally, in some limited instances, attorney. That can be a lengthy process, what may seem to be frivolous, even however, and sometimes requires several harassing, litigation tactics may result disciplinary actions before the ultimate in discipline even when no violation resolution is achieved (an admonition of Rule 3.1, MRPC, has been charged. for a irst instance, private probation for Recently, an attorney was suspended a second or third, then public discipline for what the court labeled as frivolous if continued). litigation tactics (unduly voluminous Frivolous litigation harms the courts pleadings, motions and discovery and litigants forced to respond to such requests), but since the underlying claims. Dealing with the few attorneys claim had suficient merit, the who repeatedly bring such matters violation was limited to Rule 8.4(d), is time consuming and frustrating. MRPC, as conduct prejudicial to the The courts may have a primary role administration of justice.8 in policing such conduct, but the disciplinary system can play an equally Disciplinary Role important role where appropriate. ▲ TRADEMARK As may be discerned from the Copyright & Patent Searches discussion above, just as courts Notes 1 “Experienced Washington ofice sometimes struggle to determine Many writers (well, several) have for attorneys worldwide” whether a particular matter is indeed stated that the McDonald’s coffee frivolous and worthy of sanctions, lawsuit was far from frivolous. FEDERAL SERVICES & RESEARCH: the disciplinary system has a similar Using it as an example is not Attorney directed projects at all Federal dificulty. Even though the standard intended to resolve this debate. agencies in Washington, DC, including: applicable to Rule 3.1, MRPC, is an 2 Dictionaries most commonly USDA, TTB, EPA, Customs, FDA, INS, FCC, ICC, SEC, USPTO, and many others. objective one, as opposed to a subjective include words like “trivial,” Face-to-face meetings with Gov’t oficials, one, application of the rule involves an “inappropriate,” or even “silly” in Freedom of Information Act requests, inherent degree of “we know it when we their deinition of frivolous. copyright deposits, document legalization 3 @ State Dept. & Embassies, complete see it” as was noted above. That is one Canon 31, ABA Canons of trademark, copyright, patent and TTAB reason why disciplinary authorities may Professional Ethics (1908). iles. hesitate to charge a violation of Rule 4 An indeinite suspension requires 3.1, MRPC, absent court indings in a petition for reinstatement and COMPREHENSIVE: U.S. Federal, State, Common Law and Design searches, all but the most obvious and egregious a reinstatement hearing pursuant INTERNATIONAL SEARCHING situations. The rule allows exceptions to Rule 18, Rules on Lawyers EXPERTS: Our professionals average (as do other similar standards) for Professional Responsibility (RLPR), over 25 years experience each instances of “a good faith argument for whereas a ixed suspension of 90 FAST: Normal 2-day turnaround an extension, modiication, or reversal days or less would not. Rule 18(e) with 24-hour and 4-hour service available of existing law,” so where there is some (3), RLPR. degree of reasonable disagreement, 5 In re Pinotti, 585 N.W.2d 55 (Minn. GOVERNMENT LIAISON SERVICES, INC. caution usually is applied. For the most 1998). 200 N. Glebe Rd., Suite 321 part, the disciplinary system allows the 6 In re Ulanowski, 800 N.W.2d 785 Arlington, VA 22203 Ph: 703-524-8200, Fax: 703-525-8451 court to make that type of judgment call (Minn. 2011). in the irst instance. 7 In re Panel Case No. 17289, 669 Minutes from USPTO & Washington, DC One way in which the disciplin- N.W.2d 898 (Minn. 2003). ary system can play a signiicant role is 8 In re Murrin, 821 N.W.2d 195 TOLL FREE:1-800-642-6564 in dealing with individuals who bring (Minn. 2012); petition for cert. www.GovernmentLiaison.com [email protected] frivolous claims or lawsuits in multiple pending.

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