The Rules of Professional Conduct (RPC) prohibit attorneys from filing frivolous claims or defenses. As a result, attorneys are required to counsel clients against pursing such claims. While money is not available as a means of influencing client decisions in pro bono cases, volunteer attorneys still have many tools with which to effectively advise clients against pursuing frivolous claims.” Here are some tips:
1. Set the stage. At the beginning of the representation, clearly review with the client:
- Goals and objectives (and the extent to which they are attainable under applicable law)
- What you will and will not do for them
- Reasonable time frames for the various stages of litigation
- How you will keep them informed of the status of the case
- That he or she has the ultimate say on case objectives and settlement
- That you have the ultimate say on case strategies
2. Establish in writing the legal issue with which you will be assisting the client. Clients often have more than one legal issue. Refer the client back to VLN for all other legal issues.
3. If a client’s request would violate a RPC, explain that you are unable to undertake the requested action and try to persuade the client to follow a meritorious claim.
4. If the client persists, you may need to withdraw. Paragraph 3 of the VLN Representation Agreement provides examples of situations under which you may withdraw, e.g.:
- Rule 3.1 –Meritorious Claims and Contentions. (Paragraph 3G of the VLN Representation Agreement provides that you may withdraw if you conclude that there is very little chance of winning the case but the client insists on pursuing his or her claim.)
- Rule 3.3 – Candor Towards the Tribunal. (Paragraph 3A of the VLN Representation Agreement provides that you may withdraw if the client has not told the truth.)
- Rule 4.4 – Respect for Rights of Third Persons. (Paragraph 3D provides that you may withdraw if lawyer ethics prohibited you from continuing to represent the client.)
5. Empower your client. Explain the options and consequences. Your client may have goals that you would not. As long as they do not require you to violate the RPC, Rule 3.1 requires you to advocate with due diligence. Beware the tendency to second-guess your pro bono clients’ goals or to equate lack of money with an inability to know what is best for oneself.
Bottom line: just as with paying clients, Rule 1.16 (Declining or Terminating Representation) requires you to withdraw if the representation will result in violation of the RPC or other law. It also permits you to withdraw in many other situations. This provides you with some leverage to influence your pro bono client to not pursue a frivolous claim.
Submitted by Julie E. Bennett, Minnesota Office of Lawyers Professional Responsibility
