NYSBA 2021-01-11

When a court-assigned client insists on pressing a motion the lawyer believes is frivolous, can the lawyer just rest on the client's pro se papers or refuse to go further?

Short answer: No. The opinion concludes that a lawyer may not advance frivolous arguments under Rule 3.1(a); the lawyer may present any non-frivolous arguments, may seek leave to withdraw if the client insists on frivolous ones, and if withdrawal is denied must competently represent the client without frivolous conduct.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1214: Frivolous Arguments to a Court and Withdrawal

Short answer: The opinion concludes that a lawyer is ethically prohibited from presenting a frivolous argument to a court; the lawyer may advance any non-frivolous arguments, may seek the court's permission to withdraw if the client insists on frivolous ones, and if the court denies withdrawal must competently represent the client without engaging in frivolous conduct.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer is a lawyer at a free legal services office that represents homeowners in residential foreclosure cases. The office declined a homeowner's post-judgment matter, after which the homeowner filed a pro se motion to vacate the foreclosure judgment alleging defective service. The presiding judge asked the inquirer to represent the homeowner and attempt settlement, and the inquirer agreed on a scope limited to settlement negotiations. After settlement failed, the court asked the inquirer to continue with the homeowner's motion to vacate; the inquirer objected that the agreed scope was settlement only, but the court stated the representation was unlimited. The inquirer reviewed the pro se papers and concluded there was no non-frivolous basis to vacate.

The opinion answers under Rule 3.1(a), which bars bringing or defending a proceeding, or asserting an issue, without a non-frivolous basis in law and fact. Frivolous conduct under Rule 3.1(a) tracks 22 NYCRR § 130-1.1(c): completely without merit and unsupportable by a reasonable argument for changing the law, undertaken to delay or harass, or asserting false material facts. The inquirer may not advance frivolous arguments, but must distinguish frivolous arguments from those merely unlikely to succeed; the inquirer may continue by advancing any non-frivolous arguments reasonably believed to support vacatur, discussing any new position with the client first under Rule 1.4(a)(2).

If the homeowner insists the inquirer pursue the frivolous arguments in the pro se papers, the inquirer may seek the court's permission to withdraw on the ground that the client insists on action with which the lawyer has a fundamental disagreement (Rule 1.16(c)(4)) or any other Rule 1.16 ground, while being mindful that what may be revealed on a withdrawal motion depends on the confidentiality limits of Rule 1.6 (citing N.Y. State 1057). If the court denies withdrawal, the inquirer must continue the representation under Rule 1.16(d) but still may not engage in frivolous conduct: a client cannot direct a lawyer to violate a Rule. Because the homeowner, not the inquirer, submitted the frivolous papers, the inquirer need not renounce them but may not rely on their frivolous arguments. On the second question, the opinion notes limited scope representation is permitted under Rule 1.2(c), but whether the inquirer may refuse the judge's request to continue, and whether that request was a binding order, are questions of law beyond the committee's jurisdiction.

In practice

Under this opinion, a New York lawyer facing a client's insistence on a frivolous motion may not present the frivolous arguments (Rule 3.1(a)), but should advance any non-frivolous arguments that support the client's objective, consulting the client about any modified position under Rule 1.4(a)(2). Per the opinion, if the client insists on the frivolous course, the lawyer may move to withdraw under Rule 1.16(c)(4), revealing only what Rule 1.6 permits; if the court denies withdrawal, the lawyer must continue under Rule 1.16(d) and represent the client competently without frivolous conduct. The committee did not decide whether the lawyer may decline the court's request to expand the representation, treating that as a question of law.

Common questions

Q: Can a lawyer rest on a client's pro se papers that the lawyer believes are frivolous?

A: No. Per the opinion, Rule 3.1(a) bars advancing frivolous arguments; the lawyer must instead present any non-frivolous arguments that can be developed to support the motion.

Q: What is the line between frivolous and merely weak arguments?

A: Per the opinion, frivolous conduct meets the high standard of 22 NYCRR § 130-1.1(c): completely without merit, undertaken to delay or harass, or asserting false material facts; arguments merely unlikely to succeed are not frivolous.

Q: Can the lawyer withdraw if the client insists on the frivolous motion?

A: The lawyer may try. Per the opinion, the lawyer may seek the court's permission to withdraw under Rule 1.16(c)(4), disclosing only what Rule 1.6 allows.

Q: What if the court refuses to let the lawyer withdraw?

A: Per the opinion, the lawyer must continue under Rule 1.16(d) and represent the client competently, but still may not present frivolous arguments; the lawyer need not disavow the client's own pro se papers but may not rely on their frivolous parts.

Background and rules framework

The opinion interprets Rule 3.1(a) (non-frivolous basis for proceedings and arguments, read together with 22 NYCRR § 130-1.1(c)), Rule 1.4(a)(2) (consulting the client about means), Rule 1.16(c)(4) and (d) (permissive withdrawal and continuing when ordered), and Rule 1.2(c) (limited scope representation). These correspond to ABA Model Rules 3.1, 1.4, 1.16, and 1.2.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 3.1(a), 1.4(a)(2), 1.16(c)(4), 1.16(d), 1.2(c)
ABA Model Rules 3.1, 1.4, 1.16, 1.2 (analogues)

Statutes:

22 NYCRR § 130-1.1(c) (definition of frivolous conduct)

Other opinions cited:

N.Y. State 1057 (2015): confidentiality limits on disclosures in a withdrawal motion

Source

Landing page: https://nysba.org/ethics-opinion-1214/