November 2014 Bar Bulletin
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November 2014 Bar Bulletin

Novel Legal Theories and RPC 3.1

By Karen Sutherland


Have you ever wondered about the ethics of raising a novel legal issue? RPC 3.1, Meritorious Claims and Contentions, provides some guidance:

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.

With respect to novel legal theories, Comment 1 to RPC 3.1 notes: "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." Comment 2 adds that lawyers are required to "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." Comment 2 also notes: "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."

There are three advisory opinions interpreting RPC 3.1.1 Opinion 1233 (1988) resulted in a close (8-6) vote by the Committee that it would be a violation of RPCs 3.1, 8.4(c) and 8.4(d) for a prosecutor to file a case that would violate a defendant's right to a speedy trial under CrR 3.3. In Opinion 2072 (2004), the Committee determined, "Citing to an unpublished opinion appears not to result in a per se violation of the RPCs. Nonetheless, citations to such authorities should only be made after consideration of RPC 3.1 and 3.4."

In Opinion 2131 (2006), the Committee determined, "It is not per se unethical for a pro se attorney to file an adversary proceeding in bankruptcy [to determine dischargeability of his student loan obligations] because attorneys, as lay-persons, have a basic right to self representation." However, the Committee also noted that "various ethical obligations under Title 3 and Title 4 of the WRPC present additional problems for the pro se attorney. The old adage about the attorney who represents him/herself having a fool for a client can be explained, in part, by the lack of objectivity in evaluating and handling the matter." RPC 3.1 was one of the rules the Committee cited as requiring "realistic and objective participation."

The courts have also addressed RPC 3.1, most frequently in the context of finding that one of the parties made a frivolous claim. However, in terms of novel claims, there are some cases that stand out. In an unpublished portion of State v. Moore,2 the Court of Appeals, citing RPC 3.1, held: "[C]ounsel is not ineffective for refusing to advocate for a position that is unsupported by the law. Indeed, the refusal to do so is consistent with a lawyer's ethical obligations."

In Goldmark v. McKenna,3 Justice Gerry Alexander referenced RPC 3.1 in his concurring opinion to the effect that the attorney general had a duty to pursue an appeal on behalf of the public lands commissioner if it was not frivolous:

The oath that all Washington attorneys must take provides that in civil cases a lawyer shall not "counsel, or maintain any suit, or proceeding, which shall appear to me to be unjust, or any defense except as I believe to be honestly debatable under the law." APR 5(e). In addition, RPC 3.1 says that "[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."

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