Can a lawyer knowingly file a small-claims action in a venue chosen only to embarrass, delay, or burden the other side?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-93-2 (1993) addressed a short question: may a lawyer knowingly commence a small-claims action in a venue that has no substantial purpose other than to embarrass, delay, or burden a third person? The committee answered no.
The committee grounded the answer in SCR 20:4.4, which provides that in representing a client a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. It concluded that knowingly commencing a legal proceeding in an improper venue primarily to burden the defendant violates that rule. The committee also pointed to SCR 20:3.1(a) and quoted the Chapter 20 Preamble's statement that a lawyer should use the law's procedure only for legitimate purposes and not to harass or intimidate others.
Currency note
This opinion was issued in 1993, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). The rules it relies on (SCR 20:4.4 and 20:3.1) have been revised since. 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 Treat this page as historical context, not current guidance.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: Could a lawyer pick an improper venue just to make things harder for the defendant?
A: No. The committee concluded that knowingly filing in an improper venue primarily to burden the defendant violates SCR 20:4.4's prohibition on using means whose only substantial purpose is to embarrass, delay, or burden a third person.
Q: What other authority did the committee cite?
A: It cited SCR 20:3.1(a) and the Chapter 20 Preamble's instruction that a lawyer should use legal procedure only for legitimate purposes and not to harass or intimidate others.
Background and rules framework
The opinion interprets SCR 20:4.4 / Model Rule 4.4 (respect for the rights of third persons) and SCR 20:3.1 / Model Rule 3.1 (meritorious claims and contentions), read together with the aspirational language in the Chapter 20 Preamble about using legal procedure only for legitimate ends.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:4.4 / Model Rule 4.4 (respect for rights of third persons)
- Wis. SCR 20:3.1(a) / Model Rule 3.1 (meritorious claims and contentions)
See also
- OR Bar Ethics Op. 2005-59: Frivolous Joinder of Defendants
- NY State Bar Op. 1214: Frivolous Arguments and Withdrawal in Foreclosure
- WI Ethics Op. E-94-1: Duty to Disclose Adverse Authority
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-93-2.pdf
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