Ethics

Q. I am not sure what is the best defense to assert while defending my client. May I file numerous defenses in the hopes that one of them will work?

A. IRPC 3.1 forbids the filling of frivolous claims. Comment [2] to Rule 3.1 states that “the filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good-faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the clients’ position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable to either make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification or reversal of existing law.” 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

Q. My client wishes to pursue a course of action that, although it is perfectly legal, may not be in their best interest. Do I have a duty to advise them of this?

A. Rule 2.1 states: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Comment 5 to that rule goes further and states: “In general, a lawyer is not expected to give advice until asked by the client.  However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.”

Q.  I have reason to believe that another lawyer in my firm is filing a frivolous lawsuit. Do I have an obligation to do anything?

A. Rule 5.1(a) states that “a partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rule of Professional Conduct.” It might also be important to remember the words of Abraham Lincoln when his law partner filed a plea that was not factually accurate: “Hadn’t we better withdraw that plea? You know it’s a sham, and a sham is very often but another name for a lie. Don’t let it go on record. The cursed thing may come staring us in the face long after the suit has been forgotten.”

Q. Can a lawyer avoid disciplinary proceedings by changing his or her registration status to inactive or retired?

A. Supreme Court Rule 756(i) provides that changing registration status will have no effect on disciplinary proceedings.  However, in some cases and with the consent of the ARDC, a lawyer facing certain disciplinary charges can seek to be placed on “permanent retired status” under Supreme Court Rule 756(a)(8) resulting in the closure of any pending disciplinary investigation or dismissal of any pending disciplinary proceeding.  

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.