Litigation & Advocacy · 10-16% of the exam
13.1.1Meritorious claims and contentions (Rule 3.1)
On this page
- A lawyer shall not bring or defend a proceeding, or assert or controvert an issue, unless there is a basis in law and fact for a non-frivolous position (Model Rule 3.1).
Why
Courts and opponents absorb real cost every time a claim with nothing behind it is filed. Without a floor on what may be put before a tribunal, litigation becomes a weapon in itself — a way to impose expense and delay on the other side regardless of whether the position could ever succeed.
Plain English
Bringing or defending a proceeding, or asserting an issue, requires a basis in law and fact for a non-frivolous position; a good-faith argument to extend, modify, or reverse existing law qualifies. You may file before every fact is confirmed, provided you have informed yourself about the facts and the applicable law and determined that a good-faith argument can be made; if later facts destroy any colorable basis you must reassess.
Defending a criminal charge, or any matter whose potential outcome includes incarceration, you may still put the prosecution to its proof on each element — but that carve-out covers defensive posture only, and does not authorize affirmatively asserting facts you know to be false; that no-false-facts limit comes from Rules 3.3(a)(1) and 4.1(a) rather than from Rule 3.1 itself. Only where no good-faith argument exists at all does a claim become frivolous; probable loss on the merits, standing alone, never crosses the line.
Rule
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue, unless there is a basis in law and fact for a non-frivolous position (Model Rule 3.1).
The standard accepts two argument types:
- one that fits within existing law, and
- one seeking the extension, modification, or reversal of existing law.
Each must rest on good faith.
Filing before all facts are confirmed is permissible; vital evidence may be developed through discovery after filing — but Comment [2] requires that lawyers
- inform themselves about the facts of the client's case and the applicable law and
- determine that they can make a good-faith argument for the client's position.
If post-filing facts eliminate any colorable basis, the position becomes frivolous and the lawyer must reassess, including potentially withdrawing.
- Criminal-defendant exception
When defending a criminal charge, or any matter whose potential outcome includes incarceration, the lawyer may put the prosecution to its proof on each element — even when the client has privately admitted guilt. This carve-out covers defensive posture only; it never authorizes affirmatively asserting facts the lawyer knows to be false — that limit is imposed by Rules 3.3(a)(1) and 4.1(a), not by Rule 3.1.
Inside that carve-out the bar on false facts is Rules 3.3(a)(1) and 4.1(a) doing the work, not Rule 3.1 — which is why a defense lawyer who asserts nothing false may still contest every element.
Example 1
Ex. 1
Ana represents a plaintiff whose three key witnesses have relocated abroad. She files suit, confident discovery will surface supporting evidence. Ben defends a theft prosecution; his client privately admitted the act. Ben puts the government to its proof on every element and makes no affirmative factual assertions for the client.
Neither violates Rule 3.1. Ana may file if she reasonably believes evidence will emerge. Ben's conduct falls within the criminal-defendant exception: requiring proof of every element is exactly what the rule permits, provided he makes no affirmative false statement of fact. Measure Ana and Ben by what each one asserts: a claim she expects to prove, and no factual assertion at all.
Example 2
Ex. 2
Carla defends a client charged with assault who has privately admitted the act. At trial Carla cross-examines the prosecution's witnesses and argues the government failed to prove every required element. She makes no affirmative claim of innocence.
Carla has not violated Rule 3.1. The criminal-defendant exception permits requiring proof of each element even when the lawyer knows the client is guilty. Vigorous cross-examination isn't an affirmative false assertion; that line she has not crossed. Pin Carla's argument to what it claims: a failure of proof, not her client's innocence.
Trap
Tip
Questions · 2
Q 01ch13-e01
Question 1 of 2 · Rule 3.1
Attorney represented Plaintiff, a wholesale bakery, in a suit against a former distributor accused of diverting the bakery's confidential customer list to a competitor. Before filing, Attorney read the client's internal emails, studied the governing statute and the decisions applying it, and concluded that a good-faith argument supported the claim. The emails showed that the list had reached the competitor but not how it had been copied; the records answering that question sat with the distributor and would surface in discovery. Attorney filed the complaint on that footing and served written discovery the same week. The distributor moved to dismiss, calling the pleading speculative. Is Attorney subject to discipline?
Keys 1 to 4 choose.