COMMENT
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.
[2] 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 client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to 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.
[3] The lawyer’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.
REPORTER’S NOTES:
Model Rule 3.1 (2002), addressing the lawyer’s role as an advocate, is substantively consistent with M. Bar R. 3.7(a). Moreover, Rule 3.1 is consistent with the requirements imposed upon a lawyer by the Maine Attorney’s Oath found in 4 M.R.S. § 806, which has been held by the Maine Supreme Judicial Court to impose substantive ethical and legal restrictions on lawyers. Model Rule 3.1 is arguably broader than M. Bar R. 3.7(a), however, in barring lawyers from taking frivolous positions, even if they are not offensive, harassing, or taken with malicious intent. It is not considered frivolous for a party to a proceeding to compel adverse parties to meet their required burdens of proof. After discussion, the Task Force thought this was a positive modification and recommended adoption of Model Rule 3.1 (2002).
Advisory Note – November 2011
This Amendment addresses a transitional issue from the former Bar Rules to the Maine Rules of Professional Conduct. Former Maine Bar Rule 3.6(c) proscribed threatening prosecution: “A lawyer shall not present, or threaten to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter.” The ABA Model Rules of Professional Conduct do not directly prohibit this conduct. ABA Formal Ethics Opinions 92-363 and 94-383 suggest the conduct is addressed by Model Rules 3.1 and 4.1(a) & (b). The omission of explicit language in the Maine Rules of Professional Conduct by the Ethics 2000 Task Force was not to be read as condoning the previously proscribed conduct. This addition of subsection (b) gives expression to the continuing prohibition. The rule as promulgated clarifies that prosecutors may engage in good faith negotiations to resolve multiple related matters.
