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struggle4progress Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-15-09 12:27 PM
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18. Frivolous filings and vexatious litigation
Georgetown Journal of Legal Ethics
Summer 2001

by Schiller, Erin
Wertkin, Jeffrey A


The Restatement of the Law Governing Lawyers 110 addresses frivolous advocacy:

(1) A lawyer may not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law ...

The Restatement provides yet another contribution to the legal definition of "frivolous." Comments to the Restatement define a frivolous position as "one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it."29 The authors further provide a four factor test to help determine whether an argument includes a good-faith basis for an extension, modification, or reversal of existing law: (1) whether there existed a precedent adverse to the position being argued, (2) whether new legal grounds of plausible weight could be advanced, (3) whether new or additional authority supports the position, and (4) some other reason such as a change in the composition of the court.30

Comments to the Restatement highlight the capacity for frivolous advocacy to inflict distress, waste resources, and achieve results for a client that are unjust.31

Despite these concerns, the authors note that disciplinary enforcement against frivolous litigation is rare: "most bar disciplinary agencies rely on the courts in which litigation occurs to deal with abuse."32 ...
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