Principles Of Professional Conduct – Meritorious Claims

Principles Of Professional Conduct – Meritorious Claims

Principles Of Professional Conduct – Meritorious Claims

Under the model rules of professional conduct, attorneys must be advocates. The California Desert Trial Academy College of Law (CDTA) offers the best of both worlds as it promotes the philosophy of not only teaching students the substantive law, but on training, educating, and developing students to be exceptional attorney-advocates. The CDTA believes that practical experience, including apprenticeships with mentors, during law school are essential elements of success.

According to a summary of the ABA Model Rule:

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

The general content, framework, and numbering scheme of this subset of the rules in California is based on Chapter 3 of the ABA Model Rules, which is entitled “Advocate.” Model Rules Chapter 3 corresponds to Chapter 5 of the current California Rules, entitled “Advocacy and Representation.” The California Rules of Professional Conduct state the “advocacy” requirement in Rule 3.1, amended and in effect since 2018, as follows:

(a) A lawyer shall not:

(1) bring or continue 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

(2) 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 the existing law.

(b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, or involuntary commitment or confinement, may nevertheless defend the proceeding by requiring that every element of the case be established.

The Rule deleted the phrase “knows or should know” from the former rule. However, the current phrase could imply a negligence standard but such is not relevant to the determination of probable cause. The inclusion of the “knows or should know” standard unnecessarily focuses the analysis on a lawyer’s ability to discern motivation rather than on the most important issue of whether a matter has merit.

An attorney-advocate has a duty to use legal procedures to benefit the client’s cause to the fullest, but the attorney-advocate also has an important duty not to abuse such legal procedures. The law, both procedural and substantive, establishes the limits within which an advocate may proceed in representing a client. However, because the law is sometimes unclear and never static, advocates must determine the proper scope of advocacy taking into consideration the law’s ambiguities as well as the potential for change within the law.

Paragraph (b) is derived from Model Rule 3.1 and was added to clarify that the proposed rule does not restrict a criminal defense attorney from requiring that every element of a criminal case be established. However, it is important to note that an attorney’s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

The California Desert Trial Academy utilizes an extensive distance learning platform for students studying online. The CDTA focuses on providing a cutting-edge academic experience that takes advantage of many effective, easy-to-use online tools. At CDTA, we train, educate, and develop students to be exceptional attorneys and trial advocates. Call us today at (760) 342-0900 or find out more online here.