Can a lawyer knowingly file a lawsuit in a court the lawyer knows has no jurisdiction over the case?

Plain-English summary

The committee was asked whether an attorney may knowingly file a lawsuit in a court the lawyer knows lacks jurisdiction to hear the case. It answered no.

The opinion drew on ABA authority disapproving litigation maneuvers that mislead or harass: ABA Informal Opinion 557 (it is improper to file a change-of-venue motion containing untrue statements) and ABA Informal Opinion 1011 (filing collection suits in a county where neither party resides, to obtain default judgments or harass the debtor, is unethical absent a permitting statute), quoting Drinker's statement that a lawyer may not bring suit in a distant county merely to harass the debtor. Turning to the question of knowledge, the committee invoked EC 7-4's principle that a lawyer is not justified in asserting a frivolous position and DR 7-102(A): a lawyer shall not file a suit when he knows or when it is obvious the action is done merely to harass or maliciously injure another, and shall not knowingly advance a claim or defense unwarranted under existing law (except by a good-faith argument for an extension, modification, or reversal of existing law).

While declining to answer the underlying legal question (and noting that jurisdiction and venue can be confusing), the committee reasoned that a judgment procured without jurisdiction is void, so knowingly filing in a court lacking jurisdiction is unethical and violates DR 7-102(A)(1) and (2). It distinguished filing a suit that may be barred by the statute of limitations, because limitations is an affirmative defense a defendant may choose not to raise (citing ABA Informal Opinion 694). The committee emphasized that a lawyer is an officer of the court who must not knowingly file where the judge has no jurisdiction, since doing so misleads the judge, and stressed that its opinion addresses the lawyer who knowingly does so, not one who makes a mistake about jurisdiction.

Currency note

This opinion was issued in 1980 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer file suit in a court the lawyer knows has no jurisdiction?

A: No. The opinion concluded that knowingly doing so is unethical and violates DR 7-102(A)(1) and (2), because it misleads the judge and a judgment without jurisdiction is void.

Q: Does the rule apply to an honest mistake about jurisdiction?

A: No. The committee expressly limited its opinion to the lawyer who knowingly files in a court lacking jurisdiction, not one who makes a mistake about jurisdiction.

Q: What about filing a suit that may be time-barred?

A: That is different. The committee said limitations is an affirmative defense a defendant may choose not to raise, so filing such a suit is not the same as knowingly filing without jurisdiction (citing ABA Informal Opinion 694).

Background and rules framework

The opinion applies DR 7-102(A)(1) and (2), barring filings made merely to harass and the knowing advancement of claims unwarranted under existing law, together with EC 7-4's frivolousness principle and the lawyer's duty as an officer of the court. The modern analogs are Model Rule 3.1 (meritorious claims and contentions) and Model Rule 3.3 (candor toward the tribunal), reflecting the committee's point that knowingly invoking a court without jurisdiction misleads the judge.

Citations and references

Rules of Professional Conduct:

• DR 7-102(A)(1) and (2) (harassing filings; claims unwarranted under existing law); EC 7-4; modern analogs Model Rule 3.1 and Model Rule 3.3

Other authorities cited:

• ABA Informal Opinions 557, 694, and 1011; Drinker, Legal Ethics, p. 156 (citing New York City Opinion 72)

See also

• KBA Ethics Op. E-265: Threatening a Bar Complaint
• KBA Ethics Op. E-272: Law Professor Suing the State

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-236.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-236
Issued: July 1980

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Question:

May an attorney knowingly file a law suit in a court of which the lawyer knows lacks jurisdiction to hear the case?

Answer:

No.

References:

EC 74; DR 7-102(A)(1)(2); ABA Informal Opinion 557, 694, 1011; Drinker, Legal Ethics, p. 156.

OPINION

In ABA Informal Opinion 557 the Ethics Committee of the American Bar Association stated that it is improper for a lawyer to file a motion for a change of venue which contains any untrue statements. In ABA Informal Opinion 1011, the American Bar Association was faced with a request from an attorney who did a great deal of collection work and routinely filed suit in the county of the plaintiff's residence. The American Bar Association Committee concluded that the plaintiff's action of filing suit in a county other than the defendant's residence is intentional and to serve the purpose of the plaintiff in obtaining default judgments as a matter of convenience to the plaintiff. The Committee cited Drinker, Legal Ethics, page 156, "He may not bring suit in a distant county merely in order to harass the debtor." (Citing New York City Opinion 72). The American Bar Association concluded that this practice is unethical if done to harass the defendant or take advantage of the absence of the opposite party in such county and would be true if the suit was filed in a county where neither the plaintiff nor the defendant resides, in absence of statute permitting such filing.
The question which we have before us is one of "knowledge" in filing a law suit where there is no jurisdiction. EC 74 in part states "a lawyer is not justified in asserting a position in litigation that is frivolous." DR-102 provides as follows:
(A) In his representation of a client, a lawyer shall not:
(1) File a suit... when he knows or when it is obvious that such action is being done merely to harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

This Committee is not authorized to issue answers to questions of law. Although it can be certainly said that "jurisdiction" and "venue" are sometimes confusing and obscure legal principles. But the fact is that a judgment procured without jurisdiction is VOID. It is the Committee's feeling that it is unethical for a lawyer to knowingly file a suit in a court which lacks jurisdiction to hear the suit. We are mindful that a lawyer may file a suit in a court when the suit may be barred by the Statute of Limitations. However, the Statute of Limitations is an affirmative defense which must be effectively pled and there are many situations in which a defendant may wish not to take advantage of this defense. (ABA Informal Opinion 694). However, it is our feeling that if you knowingly file a law suit in a court which lacks jurisdiction it violates DR 7-102(A)(1) and (2).
A lawyer is an officer of the court. As such he has the duty not to knowingly file a suit in which a judge has no jurisdiction to decide the matter. In doing this, the lawyer misleads the judge.
The Ethics Committee's opinion is not directed to a case in which a lawyer makes a mistake as to jurisdiction but is directed to the attorney who knowingly files a suit in a court which lacks jurisdiction.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.