ER 3.1 Meritorious Claims and Contentions

The Standard

In bringing or defending litigation, lawyers must have a good-faith basis in law and fact that is not frivolous. The “good faith basis in law and fact that is not frivolous” may include a good-faith and nonfrivolous argument for an extension, modification, or reversal of existing law.

The Limitation

Whether a proceeding is frivolous is determined based on an objective standard; whether the lawyer has acted in good faith is based on a subjective standard. “Zealousness” is not an excuse or a reason for bringing or defending meritless claims and contentions in litigation. However, a lawyer for a criminal defendant may require that the prosecution establish every element of its case.

FAQs

May I go to the judge’s chambers and speak with the judge about an Order that I know was wrongly entered?

No, that would constitute an improper ex parte communication.

Is all communication with a judge ex parte?

Communications with a judicial officer on matters wholly unrelated to litigation matters before the court are not ex parte communications. If they were, judges would, as a practical matter, be precluded from conversing with any lawyers, either through professional associations or bar committee, or socially. State Bar Ethics Op. 90-20. The judge may have to disclose some relationships to opposing counsel in litigation if the judge thought that, because of such a relationship, his or her impartiality might reasonably be questioned. See Judicial Canon 3. Under certain circumstances, a judge may consider disclosing contacts with opposing counsel on unrelated matters, such as law-related education programs or bar committee work, simply to avoid the appearance of impropriety as required by Judicial Canon 2.

The administrative law judge wants to contact parties directly for the limited purpose of scheduling hearings. Is this permissible?

There are better alternatives to such contact: conference calls can be arranged or an email addressed to all parties could be sent. The judge could also establish a routine status conference with all parties to discuss scheduling and other administrative matters. Ariz. State Bar Ethics Op. 87-17.

After the jury is discharged, may I review a juror’s Facebook or LinkedIn page?

According to ABA Formal Opinion 466 (April 24, 2014), the ABA Committee determined that overt contact like “friending” is a prohibited communication. But the Committee determined that the lawyer is not communicating with a juror if the website sends an automatically generated notice to the juror telling them that the lawyer was reviewing their website. The opinion stated “this is akin to a neighbor recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”

This page is managed by Patricia Seguin

ER 3.1 Meritorious Claims and Contentions

The Standard

The Limitation

FAQs

Best Practices

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