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ON ETHICS: Frivolous accusations of frivolity

Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at nate@cade-law.com

Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at nate@cade-law.com

A recent encounter with opposing counsel in a very terse and contentious case got me thinking about the (over)use of the word “frivolous.”

Speaking over the phone, the lawyer I’m referring to took the time to try to school me about a matter, suggesting that he thought the discovery responses I had prepared were not specific enough. He then went on to mutter something under his breath — it might have been about Benghazi or something like that — and the next thing out of his mouth was “… and they (the responses) might be frivolous.”

Whoa! Them’s fighting words.

We had a few more minutes of contrite pleasantries, discussed next steps, etc. Just before we ended the conversation, I asked him “Are you going to report me to the Office of Lawyer Regulation?”

I wish our discussion had been in person or at least recorded on video, because that pregnant pause in the conversation spoke volumes. “What do you mean?” he countered after a few seconds of unnecessary silence.

I informed him that as an attorney licensed in this state (and in really in any state), he has a duty to report lawyers to the bar or other licensing authorities if he believes that they are not acting appropriately. I won’t bore you with his response, but calling his bluff seemed to do the trick, and the conversation we had just the other day was much more pleasant.

But it got me thinking about how we, as lawyers — whether in a brief, in court, or even as we discuss amongst ourselves the lawyers on the other side of some matter — are often so quick to bandy about the word “frivolous” or some derivative. As in, “I cannot believe that the Plaintiff put that in the complaint, because it is frivolous.”

Amazingly enough, nothing we do, as the drafters on our side of the brief, is ever frivolous. But, whatever the other side drafts is often subjected to the charge of frivolity. Why should this be?

Interestingly, although few lawyers hesitate to throw around this word — as if it were indoctrinated into us in our first-year courses on legal writing — rarely does the overuse of this word ever make whatever is being drafted better. More often, it’s a sign of weakness in the writer’s position.

And at some point during instances like my phone conversation of the other day, the thought will occur to me that if lawyers truly believe that something is frivolous, they should quickly recognize their obligation to notify their brethren of the error of the offending person’s ways, give an opportunity to remedy the supposed violation and then actually move to strike or take some other action against the offending document. Yet, how often has a lawyer actually filed a motion to strike something down for being frivolous? So, if you are not sure enough that something is frivolous, why even threaten it if you are willing to go to court to have it corrected?

The 7th Circuit actually back-slapped a lawyer for using the word “frivolous” in a brief. In First Weber Group, Inc. v. Horsfall, 738 F.3d 767 (7th Cir. 2013), the court, in dealing with a case involving the intersection of bankruptcy and real estate, specifically noted, in response to the parties cross-motions for sanctions, that “… an appeal (is) frivolous ‘when the result is foreordained by the lack of substance to the appellant’s argument’” and that “(i)t is important to keep the bar high, so that parties will not be dissuaded from bringing arguments that ultimately may fail, but that are fair grounds for application or extension of the law.”

But the following quote actually made reading the decision enjoyable: “As our sister circuit (the Sixth) said recently: ‘There are good reasons not to call an opponent’s arguments ‘ridiculous.’ … The reasons include civility; the near-certainty that (the use of that) over-statement will only push the reader away … and that, even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusion.’ … We think the parties in this case would have done well to follow this advice.”

At some point, the reader, likely the court, grows immune to the overuse of the word “frivolous.” In fact, it is frivolous to use the word “frivolous” so often. If it is not frivolous enough to seek sanctions or report an attorney to the disciplinary authorities, then it just isn’t frivolous.

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