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W. Va. R. Prof'l Conduct 3.1

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Rule 3.1 Meritorious Claims and Contentions

Advocate

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Rule Text

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.

Plain-English Summary (for reference only — not a substitute for the rule text above)

This summary is not the rule. The rule text controls.

Lawyers can't file lawsuits or raise legal arguments just to waste time or harass someone. Before bringing a case to court, or fighting one, a lawyer needs a real basis in the facts and the law. This doesn't mean the lawyer has to be certain they'll win. They can make good faith arguments to change existing law, challenge a law they think is wrong, or push for a new legal interpretation, as long as the argument is genuine and not just noise.

There's an important exception for criminal cases. If someone is charged with a crime, or faces a situation where they could go to jail, their lawyer can make the prosecution prove every single part of its case. This is true even if there's no real dispute about what happened. The government still has to do its job and prove guilt, and the defense lawyer isn't acting improperly by holding them to that standard.

In short, this rule stops lawyers from filing bogus claims or defenses just to cause trouble, while still protecting a person's right to make the government prove its case in criminal matters.

Committee Notes

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.

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