## **Learning Outcomes**

After reading this article, you will be able to identify and apply the rules governing meritorious claims and contentions in advocacy. You will distinguish between proper and improper claims, recognize the prohibition on frivolous litigation, and understand the consequences of violating these duties. You will also be able to answer MPRE-style questions on this topic with confidence.

## **MPRE Syllabus**

For the MPRE, you are required to understand the ethical obligations of lawyers when advocating before tribunals and dealing with opposing parties. This article covers:

- The duty to bring only meritorious claims and contentions.
- The prohibition on filing or defending frivolous actions.
- The difference between civil and criminal advocacy standards.
- The lawyer’s responsibilities regarding withdrawal of improper claims.
- The potential for litigation sanctions and professional discipline.
- The relationship between client instructions and the lawyer’s ethical duties.

## **Test Your Knowledge**

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision._

1. A lawyer files a lawsuit based solely on a client’s desire to harass the defendant, knowing there is no legal or factual basis. Is the lawyer:
   a) Acting zealously for the client  
   b) Subject to discipline  
   c) Protected if the client insists  
   d) Permitted if the claim is later withdrawn

2. In a criminal case, may a defense lawyer require the prosecution to prove every element even if there is no factual dispute?
   a) Yes  
   b) No  
   c) Only if the client requests  
   d) Only if the lawyer believes the client is innocent

3. Which of the following is NOT a valid reason for a lawyer to file a pleading?
   a) To extend existing law in good faith  
   b) To delay proceedings for the client’s benefit  
   c) To assert a claim with a non-frivolous basis  
   d) To challenge the law with a good faith argument

4. If a lawyer learns after filing that a claim is no longer supported by law or fact, what must the lawyer do?
   a) Continue to advocate the claim  
   b) Withdraw or correct the claim  
   c) Ignore the change  
   d) Wait for the client’s instructions

## **Introduction**

Lawyers have a duty to the tribunal and to opposing parties to ensure that all claims, defenses, and legal contentions they present are supported by law and fact. This obligation is central to the integrity of the legal process and prevents abuse of the judicial system. The rules prohibit lawyers from filing or defending frivolous matters and require withdrawal of unsupported claims. These duties apply in both civil and criminal contexts, with some differences in application.

> **Key Term: Meritorious Claim**
> A claim or contention that is supported by existing law, a good faith argument for changing the law, or a factual basis.

### Duty to Bring Meritorious Claims

A lawyer must not bring or defend a proceeding, or assert or oppose an issue, unless there is a basis in law and fact that is not frivolous. This includes making a good faith argument for extending, modifying, or reversing existing law.

> **Key Term: Frivolous**
> A claim or contention that lacks any legal or factual support and is not made in good faith to change existing law.

### Prohibition on Frivolous Litigation

Filing or defending a claim solely to harass, delay, or burden another party is prohibited. Lawyers must conduct a reasonable inquiry into the facts and law before submitting pleadings or motions.

> **Key Term: Litigation Sanction**
> A penalty imposed by a tribunal for improper conduct in litigation, such as fines, fee awards, or contempt.

### Criminal Defense Exception

In criminal cases, or proceedings that could result in incarceration, a defense lawyer may require the prosecution to prove every element of the case, even if there is no factual or legal basis to challenge an element. This ensures the client’s rights are fully protected.

### Withdrawal or Correction of Improper Claims

If a lawyer discovers after filing that a claim or defense is no longer supported by law or fact, the lawyer must withdraw or correct the claim. Continuing to advocate a baseless position may result in discipline or sanctions.

### Client Instructions and Lawyer’s Duty

A client’s insistence on pursuing a frivolous claim does not excuse the lawyer’s duty to comply with ethical rules. The lawyer must refuse to participate in improper conduct, regardless of client pressure.

### **Worked Example 1.1**

A client instructs her lawyer to file a lawsuit against a former business partner, but the lawyer knows there is no factual or legal basis for the claim. The client insists, saying she wants to “teach him a lesson.” What must the lawyer do?

> **Answer:** The lawyer must refuse to file the lawsuit. Filing a claim with no legal or factual basis is frivolous and would subject the lawyer to discipline, even if the client insists.

### **Worked Example 1.2**

A defense lawyer in a criminal case knows the prosecution can easily prove every element of the offense, but the client pleads not guilty. May the lawyer require the prosecution to prove its case?

> **Answer:** Yes. In criminal cases, a lawyer may require the prosecution to prove every element, even if there is no factual dispute, to protect the client’s rights.

### **Exam Warning**

> Filing a claim just to delay proceedings or harass the opposing party is a common MPRE trap. Even if the client requests it, such conduct is not excused and will result in discipline.

### **Revision Tip**

> Always check whether a claim has a non-frivolous basis in law or fact. If not, do not file or continue to advocate it, regardless of client wishes.

## **Summary**

Lawyers must only bring or defend claims that are supported by law or fact, or by a good faith argument for changing the law. Frivolous litigation is prohibited. In criminal cases, defense lawyers may require the prosecution to prove every element. If a claim becomes unsupported, the lawyer must withdraw or correct it. Client instructions do not override these duties.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Lawyers must only assert claims or defenses with a non-frivolous basis in law or fact.
- Frivolous litigation is prohibited, even at the client’s request.
- Criminal defense lawyers may require proof of every element.
- Lawyers must withdraw or correct unsupported claims.
- Litigation sanctions and discipline may result from violations.
- Client instructions do not excuse unethical conduct.

## **Key Terms and Concepts**

- Meritorious Claim
- Frivolous
- Litigation Sanction

Duties to tribunal and opposing party - Meritorious claims and contentions