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DR 7-102(A)(1) provides that a lawyer may not "[f]ile a suit, assert a position, conduct a
defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it
is obvious that such action would serve merely to harass or maliciously injure another."Proposed
Rule 3.1 is to the same general effect as DR 7-102(A)(1), with three qualifications. First, the test of
improper conduct is changed from "merely to harass or maliciously injure another" to the
requirement that there be a basis for the litigation measure involved that is "not frivolous." This
includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense
unwarranted by existing law if "it can be supported by good faith argument for an extension,
modification, or reversal of existing law." Second, the test in Rule 3.1 is an objective test, whereas
DR 7-102(A)(1) applied only if the lawyer "knows or when it is obvious" that the litigation is
frivolous. Third, Rule 3.1 has an exception that in a criminal case, or a case in which incarceration
of the client may result (for example, certain juvenile proceedings), the lawyer may put the
prosecution to its proof even if there is no non-frivolous basis for defense.
The Proposed Rule is the same as ABA Model Rule 3.1 except that the Proposed Rule
makes it clear that a lawyer may not continue to assert or controvert an issue unless the lawyer
continues to have a non-frivolous basis for the claim. The Proposed Rule also makes clear that the
lawyer must make reasonable inquiry into the basis for the claims the lawyer will make on behalf of
a client.
At the request of the Tennessee District Attorneys General Conference, Comment [3] was
added to clarify the application of Rule 3.1 to in connection with representation of a defendant in a
criminal matter.
At the request of the Alternative Dispute Resolution Commission, Comment [4] was added
to remind lawyers to give careful consideration to alternative dispute resolution prior to filing a
complaint in a civil matter.
Made
PROPOSED RULE 3.2
EXPEDITING LITIGATION
client.
[1] Dilatory practices bring the administration of justice into disrepute. Although there will
be occasions when a lawyer may properly seek a postponement for personal reasons, such as
illness or a conflict with an important family engagement, it is not proper for a lawyer to routinely
fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite
be reasonable if done for the primary purpose of frustrating an opposing party's attempt to obtain
rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench
and bar. The question is whether a reasonable lawyer would regard the course of action as having
improper delay in litigation is not a legitimate interest of the client.
[2] Even if a lawyer is justified in seeking to delay a proceeding, the lawyer may not do so
by means otherwise prohibited by these rules. See, e.g., Rules 3.1 and 3.4.
See Rule 1.0(i)
DR 7-101(A)(4) provides in pertinent part that a lawyer does not violate the lawyer's duty
to represent a client zealously "by being punctual in fulfilling all professional commitments." DR
7-102(A)(1) provides that a lawyer "shall not . . . [F]ile a suit, assert a position, conduct a defense
[or] delay a trial . . . when the lawyer knows or when it is obvious that such action would serve
merely to harass or maliciously injure another."
Comment [1] was modified to clarify that there will be occasions when a lawyer may
properly seek a postponement for personal reasons, such as illness or a conflict with an important
family engagement.
Made
The United States Attorneys, the Tennessee District Attorneys General Conference
(“TDAGC”), Professor Neil Cohen, the East Tennessee Victims Rights Task Force, and the
Tennessee Victim’s Coalition have asked the Court to modify Rule 3.2 so that the lawyer’s duty to
make reasonable efforts to expedite litigation will not be subject to the caveat that those efforts must
be consistent with the client’s interests. So modified, the Rule would simply require the lawyer to
“make reasonable efforts to expedite litigation.”The TDAGC is concerned that, despite the
Comment that indicates to the contrary, the Rule could be interpreted, particularly by a layperson, to
allow lawyers to delay litigation whenever doing so furthers a client’s interests, even if the client’s
purpose is merely to inconvenience other parties, victims, or witnesses. On the other hand, the
Memphis Bar Association has voiced concern that a duty to expedite litigation could be construed
to require a lawyer in every instance to take extraordinary steps to force the litigation process to
move faster, and that this would place an impractical burden on lawyers. The Memphis Bar
Association recommends conforming Rule 3.2, which is a duty owed to the Court, to the duty owed
to the client “to act with reasonable diligence and promptness in representing a client [in an
adjudicative proceeding].”
The Committee believes that its proposal, which is identical to the ABA Model Rule,strikes
a sensible balance between these competing recommendations and concerns. The Committee
litigation when it is reasonable to accelerate its normal pace. Thus, contrary to the recommendation
of the Memphis Bar Association, the Committee would retain the duty to act reasonably to expedite
litigation. Implicit in this duty is an obligation not to unreasonably delay litigation and to act
diligently and promptly, but when it reasonable to do so, the administration of justice will be best
served if the lawyers are required to expedite the process. On the other hand, the Committee
strongly believes that a lawyer should not be required to expedite litigation when doing so would
impair a legitimate interest of the client, such as a need for more time to effectively prepare a case.
Thus, the Committee is opposed to deleting the reference to the client’s interests. It is important to
note that Comment [1] makes clear that the reference to “the interests of the client” does not
legitimate dilatory practices whenever they would benefit a client. The failure to expedite has to be
“reasonable,” and the client interest served by the failure to expedite must be legitimate. Thus, as
clearly indicated in the Comment, a failure to expedite will violate the Rule if done for the primary
purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. The last
sentence of the Comment also indicates that realizing financial or other benefit from an improper
delay is not a legitimate client interest. Ultimately, the Committee thinks that Rule 3.2 as proposed
both protects the administration of justice against undue delay and protects litigants against the
unfairness that can result from an undue rush to justice.
PROPOSED RULE 3.3
CANDOR TOWARD THE TRIBUNAL
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or
(3) in an ex parte proceeding, fail to inform the tribunal of all material facts known to
the lawyer which will enable the tribunal to make an informed decision, whether or not
the facts are adverse.
represents a defendant in a criminal proceeding, and who has been denied permission to withdraw
from the defendant’s representation after compliance with paragraph (f), may allow the client to
testify by way of an undirected narrative or take such other action as is necessary to honor the
defendant’s constitutional rights in connection with the proceeding.
false.
defendant in a criminal matter, that the lawyer reasonably believes is false, misleading, fraudulent or
illegally obtained.
otherwise commit an offense against the administration of justice in connection with the proceeding,
including improper conduct toward a juror or a member of the jury pool, or comes to know, prior to
the conclusion of the proceeding, that the client has, during the course of the lawyer’s
representation, perpetrated such a crime or fraud, the lawyer shall advise the client to refrain from, or
to disclose or otherwise rectify, the crime or fraud and shall consult with the client about the
consequences of the client's failure to do so.
client
still intends to perpetrate the crime or fraud, or refuses or is unable to disclose or otherwise rectify
the crime or fraud, the lawyer shall seek permission of the tribunal to withdraw from the
representation of the client and shall inform the tribunal, without further disclosure of information
protected by Rule 1.6, that the lawyer's request to withdraw is required by the Rules of Professional
Conduct.
further disclosure of information protected by Rule 1.6.
the client has perpetrated a fraud upon the tribunal or otherwise committed an offense against the
administration of justice in connection with the proceeding, and in which the lawyer’s client was not
disclosure of information otherwise protected by Rule 1.6. :
toward a juror or a member of the jury pool shall report the improper conduct to the tribunal, even if
so doing requires the disclosure of information otherwise protected by Rule 1.6.
lawyer's report of a perjury, fraud, or offense against the administration of justice by a person other
than the lawyer's client, a tribunal requests additional information which the lawyer can only provide
by disclosing information protected by Rule 1.6 or 1.9(c), the lawyer shall comply with the request,
but only if finally ordered to do so by the tribunal after the lawyer has asserted on behalf of the
client all non-frivolous claims that the information sought by the tribunal is protected by the
attorney-client privilege.
[1] This Rule governs the conduct of a lawyer who is representing a client in connection
with the proceedings of a tribunal, such as a court or an administrative agency acting in an
adjudicative capacity. It applies not only when the lawyer appears before the tribunal, but also when
the lawyer participates in activities conducted pursuant to the tribunal’s authority, such as pre-trial
discovery in a civil matter.
[2] The advocate's task is to present the client's case with persuasive force. Performance of
that duty while maintaining confidences of the client is qualified by the advocate's duty to refrain
from assisting a client to perpetrate a fraud upon the tribunal. However, an advocate does not vouch
for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.
[3] An advocate is responsible for pleadings and other documents prepared for litigation,
but is usually not required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the client's behalf, and not
assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's
own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be
made only when the lawyer knows the assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to
counsel a client to commit, or assist the client in committing a fraud, applies in litigation. Regarding
compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty
toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must
recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an
advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has
not been disclosed by the opposing party. The underlying concept is that legal argument is a
discussion seeking to determine the legal premises properly applicable to the case.
Ex ParteProceedings
[5] Ordinarily, an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting position is expected to
be presented by the opposing party. However, in an ex parte proceeding, such as an application for
a temporary restraining order, there is no balance of presentation by opposing advocates. The object
of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an
affirmative responsibility to accord the absent party just consideration. As provided in paragraph
(a)(3), the lawyer for the represented party has the correlative duty to make disclosures of material
facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed
decision.
[6] When evidence that a lawyer knows to be false is provided by a person who is not the
client, the lawyer must refuse to offer it regardless of the client's wishes. The lawyer must similarly
refuse to offer a client’s testimony that the lawyer knows to be false, except that paragraph (b)
permits the lawyer to allow a criminal defendant to testify by way of narrative if the lawyer’s
request to withdraw, as required by paragraph (f ), is denied. Paragraph (c) precludes a lawyer from
affirmingthe validity of, or otherwise using, any evidence the lawyer knows to be false, including
the narrative testimony of a criminal defendant.
[7]As provided in paragraph (d), a lawyer has authority to refuse to offer or use testimony
or other proof that the lawyer believes is untrustworthy. Offering such proof may reflect adversely
on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's
effectiveness as an advocate. Because of the special protections historically provided criminal
defendants, however, this rule does not permit a lawyer to refuse to offer or use the testimony of
such a client because the lawyer reasonably believes the testimony to befalse. Unless the lawyer
knows the testimony will be false, the lawyer must honor the client’s decision to testify.
[8] A lawyer who is representing a client in an adjudicative proceeding and comes to know
prior to the completion of the proceeding that the client has perpetrated a fraud or committed
perjury or another offense against the administration of justice, or intends to do so before the end of
the proceeding, is in a difficult position in which the lawyer must strike a professionally responsible
balance between the lawyer's duties of loyalty and confidentiality owed to the client and the equally
important duty of the lawyer to avoid assisting the client with the consummation of the fraud or
perjury. In all such cases, paragraph (e) requires the lawyer to advise the client to desist from or to
rectify the crime or fraud and inform the client of the consequences of a failure to do so. The hard
questions come in those rare cases in which the client refuses to reveal the misconduct and prohibits
the lawyer from doing so.
[9] Paragraph (f) sets forth the lawyer’s responsibilities in situations in which the lawyer’s
client is implicated in the misconduct. In these situations, the Rules do not permit the lawyer to
report the client’s offense. Confidentiality under Rule 1.6 prevails over the lawyer’s duty of candor
to the tribunal. Only if the client is implicated in misconduct by or toward a juror or a member of
the jury pool does the lawyer’s duty of candor to the tribunal prevail over confidentiality. See
paragraph (i).
[10] Although the lawyer may not reveal the client’s misconduct, the lawyer must not
voluntarily continue to represent the client, for to do so without disclosure of the misconductthat
would assist the client to consummate the offense. The Rule, therefore, requires the lawyer to seek