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Ethics Opinion

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R-9

October 26, 1990

SYLLABUS

    A lawyer may file suit relying on a client's statement of facts, if upon balance a disinterested lawyer would conclude (a) the purpose of the suit is not harassment, (b) given the time available to the lawyer before any applicable statute of limitations expires, reasonable inquiry has been made into aspects of the client's claim which are available, and (c) there is no apparent reason to disbelieve the client's statement of the facts.

    If discovery or other investigation does not develop any of the facts essential to the client's claim, the lawyer, after consultation with the client, should seek to withdraw or to have the suit dismissed.

    A lawyer may file suit on a case involving new legal theories if a disinterested lawyer would conclude there is a good faith argument for an extension, modification or reversal of existing law.

    References: MRPC 3.1; MCR 2.625(A)(2); MCL 600.2591, MSA 27A.2591; Friedman v. Dozorc, 412 Mich 1, 312 NW2d 585 (1981); DeWald v. Isola, 180 Mich App 129 (1989); Kraemer v. Grant County (In re Lawton), 892 F2d 686 (CA7 1990); Fahrenz v. Meadow Farm Partnership, 850 F2d 207 (CA4 1988).

TEXT

A lawyer's client desires to sue defendant for transmitting an infection to the client. The lawyer has no proof that defendant is the host of the virus, and defendant refuses to submit to medical testing or provide medical information to ascertain whether defendant is a carrier of the virus.

The inquiry presented here is two-fold. First, what is the nature of the pre-suit investigation which the lawyer must undertake to avoid possible sanctions for filing a frivolous action? When, as here, the lawyer cannot ascertain all of the facts necessary to support the claim except through discovery, may the lawyer file suit when some critical facts are not available without discovery?

Second, are the legal contentions involving the transmission of this disease supportable through an extension, modification or reversal of existing law?

On these two issues, MRPC 3.1 states:

    "A lawyer shall 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. A lawyer may offer 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 so defend the proceeding as to require that every element of the case be established."

MCR 2.625(A)(2), which concerns taxation of costs for frivolous claims, cross-references MCL 600.2591; MSA 27A.2591, which defines a frivolous claim as follows:

    "(a) 'Frivolous' means that at least 1 of the following conditions is met:

      "(i) The party's primary purpose in initiating the action or asserting the defense was to harass, embarass, or injure the prevailing party.

      "(ii) The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true.

      "(iii) The party's legal position was devoid of arguable legal merit."

Two standards have developed over the years regarding frivolous claims: one is a subjective test which asks whether this lawyer knew that the client's case was without merit; and, the other is an objective test which asks whether a reasonable lawyer would have known that the case was without merit.

Although MRPC 3.1 does not specifically identify the nature of the investigation the lawyer should undertake or which of the two tests it adopts, this Committee has held in previous opinions that the objective test of a "disinterested lawyer" should be used. See, RI-25, RI-37. This standard has been most frequently used in the context of Fed R Civ P 11. The Law of Lawyering, Hazard and Hodes, Prentice-Hall, 1989 Supplement, pp 332.2. See, also ABA/BNA Lawyer's Manual on Professional Conduct, No. 69, section 61:101 (1988).

The comment to MRPC 3.1 sheds some light on the type of investigation that the lawyer must conduct. It provides in pertinent part:

    "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. 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 client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person. Likewise, the action is frivolous 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."

Thus, with regard to factual contentions, a lawyer must make a "reasonable inquiry" into the facts which would support the client's claim. Generally, a lawyer may rely upon the facts and statements given by a client absent evidence that the information is contradicted or unexplained. The Law of Lawyering, Prentice-Hall pp. 331, authors Hazard and Hodes. See, also, Friedman v. Dozorc, 412 Mich 1, 312 NW2d 585, 605 (1981), discussing ABA Model Code of Professional Responsibility DR-7-102(A)(1), now ABA Model Rules of Professional Conduct 3.1 and 4.4, holding that the lawyer is entitled to rely upon client's version of facts where there is no evidence to the contrary.

The question of what constitutes a reasonable inquiry is dependent on the facts of each case. The comment to MRPC 3.1 acknowledges that there may be times when the lawyer simply cannot do anything else to investigate the claim and that vital evidence may appear only through discovery. Kraemer v. Grant County (In re Lawton), 892 F2d 686 (CA7 1990). In those situations, the lawyer may proceed but only where it is evident that the lawyer can objectively do nothing more to investigate the claim and nothing suggests to the lawyer that the client seeks to file suit for the purpose of harassment or to maliciously injure a person.

The objective standard is not only the most frequently used standard, but is the most even-handed way of approaching the lawyer's duty to investigate. The objective standard does not take away the lawyer's all important function of acting as an advocate because it permits the lawyer to file suit when not all of the facts are at hand and to conduct an investigation during discovery. However, sanctions may be appropriate if discovery does not develop any of the facts essential to the client's claim and the lawyer refuses to dismiss the suit. Fahrenz v. Meadow Farm Partnership, 850 F2d 207 (CA4 1988).

The objective standard requires the lawyer to inquire into all facts presented by the client which are, for instance, contradicted by readily available evidence. Refutable or contradictory evidence must be investigated by the lawyer to ascertain the validity of the client's claim. However, in a situation where the statute of limitations is about to expire and time does not permit an investigation of any kind into the contradicted facts, the lawyer should be able to file the suit and use discovery to finish the investigation. Ga Op. 87-1 (1/11/89).

After filing the case and making reasonable inquiry, if the lawyer still has not established the facts essential to the client's claim, the lawyer should consult with the client concerning dismissing the suit. If the client agrees to seek dismissal, the lawyer should make such a motion pursuant to MRPC 1.16(c). If the client refuses to dismiss the suit, the lawyer should discuss with the client the lawyer's ethical duties under MRPC 3.1 and 3.3, including, in an appropriate case, the lawyer's seeking to withdraw from the case or the lawyer seeking to dismiss the case without the client's permission. The client should be advised of the right to seek substitute counsel in the matter.

Are the legal contentions of the case supportable through an extension, modification or reversal of existing law? The lawyer believes that a tort is recognized in the State of Michigan which would give the client a cause of action for the Defendant's act of transmitting this infection to the client. Presumably the lawyer knows of substantive authority which the lawyer will cite to the court to arguably support the lawyer's position. DeWald v. Isola, 180 Mich App 129 (1989), remand for assessment and imposition of sanctions against lawyer who cited no substantive authority for position.

MRPC 3.1 provides that a lawyer may offer a good-faith argument for an extension, modification or reversal of existing law. The comment to this rule states in part:

    "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."

If a disinterested lawyer would conclude that this tort is recognized in Michigan, or that a good-faith argument can be made that the tort should be recognized, the suit in this inquiry may be filed.

 
     

 

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