Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Ignorance Is Not Bliss When It Comes To A Frivolous Action or Defense

Before you file or maintain a frivolous action or defense, ask yourself: Am I a zealous advocate or am I violating ethical rules? 

California Rule of Professional Conduct 3-200 states:  A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is:  (A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or (B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.

California Business and Professions Code 6068(c) states that it is the duty of an attorney to “counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just . . . .”

Therefore, under both Rule of Professional Conduct 3-200 and Business and Professions Code Section 6068(c), an attorney has a duty to maintain only claims and defenses that are legally justified. In the case of In re Luxury Imports of SacramentInc. (E.D.Cal. 2012), 2012 WL 1608348, the Court found that the attorney who filed a bankruptcy appeal had an ethical duty to reject his client’s insistence that he maintain an untimely appeal.  The Court noted that even if counsel initially filed an untimely appeal unknowingly, once opposing counsel apprised him of the issue, he was obligated to confirm the untimeliness of the appeal and voluntarily terminate the proceedings. The Court deemed that sanctions were warranted against counsel for failing to dismiss the appeal, thereby wasting the time and resources of both the Court and opposing counsel.

When it comes to filing or maintaining a frivolous action or defense, the timeless proverb “Ignorance is bliss” does not protect counsel from ethical violations of California Rule of Professional Conduct 3-200 and California Business and Professions Code 6068.  Also relevant is an attorney’s duty of competence under California Rule of Professional Conduct 3-110 (C) stating that if “a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.”

In Cole v. Patricia A. Meyers & Associates, APC (2012) 206 Cal. App. 4th 1095, the Court held that co-counsel is liable for malicious prosecution even though they had no role in the underlying case other than act as trial counsel should the case proceed to trial.  In Cole, the claims against defendants were terminated by summary judgment and the ruling was affirmed on appeal.  Thereafter, the malicious prosecution action ensued. In holding co-counsel also liable for malicious prosecution, the Court reasoned that since co-counsel’s name appeared on the pleadings, as “counsel of record, the [defendant-attorneys] had a duty of care to their clients that encompassed ‘both a knowledge of the law and an obligation of diligent research and informed judgment.’”  The Court explained that an associated attorney whose name appears on all filings should not be able to avoid liability by failing to learn anything about a case that may turn out to have been maliciously prosecuted.  Finally, the Court relied on Code of Civil Procedure section 128.7(b) which essentially provides that an attorney who presents a pleading or motion to a Court impliedly certifies its legal and factual merit.

Beware of filing or maintaining a frivolous action or defense because whether intentional or simply based on ignorance, you are subject to ethical violations and penalties. Frivolous actions and defenses should never be confused with zealous advocacy.

-- Rayna Stephan

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**