When the other side seeks frivolous-action costs against both a lawyer and the client, must the lawyer withdraw from the case?

Plain-English summary

Opinion E-83-4 addressed an attorney's obligations to a plaintiff-client when the defendant counterclaims that the principal action is frivolous and demands that costs and attorney fees be assessed against both the plaintiff and the plaintiff's attorney under Wis. Stat. sec. 814.025. The committee explained that, while such a claim poses a potential conflict of interest between attorney and client, the attorney is not required to withdraw; instead the propriety of continued representation should be decided case-by-case after the attorney makes full disclosure to the client of the possible conflicts.

The committee described the statutory standard (whether the attorney knew or should have known the position was frivolous, measured by what a reasonable attorney would have known), citing Sommer v. Carr, which required findings on the statutory criteria and framed the question as whether the position is "so indefensible that it is frivolous." It noted that the Supreme Court Rules reflect the statute: SCR 20.15(1) bars accepting employment to bring an action to harass or maliciously injure, and SCR 20.15(2) forbids presenting a claim or defense not warranted under existing law absent a good-faith argument for change (citing SCR 20.16(2), 20.36(1)(a)), while SCR 20.34(a) lets an attorney urge any permissible construction favorable to the client. Because a sec. 814.025 claim places the attorney in the position of representing both the client and the attorney's own interests, the committee recognized the lawyer's independent judgment "will be or reasonably may be" affected (SCR 20.23(1), 20.24(1)), citing ABA Informal Opinion 889 on representing oneself and others. It cautioned, however, that a sec. 814.025 claim should not become a tool to force automatic withdrawal of opposing counsel, since requiring withdrawal on that basis alone could leave the client inadequately protected and conflict with SCR 20.16(2)(b)'s duty to protect the client's rights on withdrawal.

Currency note

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code (SCR 20.15, 20.16, 20.23, 20.24, 20.34, 20.36). Conflicts between a lawyer's interests and the client's are now governed by SCR 20:1.7 / Model Rule 1.7, and the duty to assert only meritorious claims by SCR 20:3.1 / Model Rule 3.1. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a frivolous-action cost claim against the lawyer force the lawyer to withdraw?

A: No. The committee held that, although such a claim creates a potential conflict, the attorney is not required to withdraw; continued representation is decided case-by-case after full disclosure to the client.

Q: Why is there a conflict at all?

A: Because sec. 814.025 allows costs and fees against the attorney as well as the client, the committee found the lawyer's independent judgment may be affected by having to represent the lawyer's own interests alongside the client's.

Q: Can the other side use a frivolousness claim to knock out opposing counsel?

A: Per the opinion, no. The committee warned that a sec. 814.025 claim should not become a tool to force automatic withdrawal, which could leave the client inadequately protected.

Background and rules framework

The opinion interpreted the former Code's provisions on meritorious claims and harassment (SCR 20.15), good-faith arguments and withdrawal (SCR 20.16, 20.36), loyalty and the lawyer's own financial interests (SCR 20.23(1), 20.24(1)), all against Wis. Stat. sec. 814.025. These now correspond to SCR 20:1.7 / Model Rule 1.7 and SCR 20:3.1 / Model Rule 3.1.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.15(1), 20.15(2), 20.34(a), 20.36(1)(a) / Model Rule 3.1 (meritorious claims; good-faith arguments) (former Code provisions)
• Wis. SCR 20.23(1), 20.24(1), 20.16(2)(b) / Model Rule 1.7 (loyalty; lawyer's own interests; protecting the client on withdrawal) (former Code provisions)

Statutes:

• Wis. Stat. sec. 814.025 (costs and fees for frivolous actions)

Cases:

• Sommer v. Carr, 99 Wis. 2d 789, 299 N.W.2d 856 (1981), frivolousness standard and required findings

Other opinions cited:

• ABA Informal Opinion 889: an attorney representing himself and others

See also

• WI Ethics Op. E-83-9: Suing One Current Client on Behalf of Another
• WI Ethics Op. E-93-2: Filing Suit in the Wrong Venue

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-4.pdf