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Generally, the decision whether to pursue a matter belongs to the client. M.R. 1.2(a). Once a lawyer undertakes a matter, the lawyer must act with reasonable competence and diligence. M.R. 1.1, 1.3. A lawyer may not, however, bring a case merely because the client wants to do so.
Rule 3.1 prohibits bringing or defending a proceeding, or asserting or controverting an issue, where there is no basis for doing so that is not frivolous. A lawyer may make a good faith argument for extension or change of the law, and a criminal defendant may require that every element of the government’s case be established. This obligation is similar to that imposed by Rule 11 of the Federal Rules of Civil Procedure, and discipline is possible in many cases where sanctions are imposed.
While this rule can lead to discipline where an attorney does not diligently pursue litigation to the detriment of his or her client, see also Rule 1.3, it is more difficult to use where the attorney delays to advance an interest of the client. In such circumstances, the question is whether there is "some substantial purpose other than delay." Comment to Rule 3.2. Rule 3.4(d) prohibits frivolous discovery requests and failure to respond diligently to discovery requests from the opposing party.
These rules prohibit knowing disobedience of the rules of a tribunal except for an open refusal on the grounds no obligation exists, alluding to evidence not reasonably believed to be admissible, assertion of personal knowledge when not testifying, and stating personal opinions regarding matters of justice or credibility. As previously noted, Rule 3.5 prohibits disruption of a tribunal.
Rule 3.3(a)(3) requires that a lawyer disclose legal authority in the controlling jurisdiction known by the lawyer to be directly contrary to the position of the lawyer and not disclosed by opposing counsel. This is tactically advisable in any event. Rule 3.3(a)(1) prohibits making a false statement of material fact or law to a tribunal.
Out-of-court comment regarding on-going cases is governed by Rule 3.6, which limits the permissible scope of trial publicity. This rule attempts to balance the lawyer’s and client’s First Amendment rights while protecting the fair administration of justice. See Gentile v. Nevada State Bar, 501 U.S. 1030 (1991). See generally Annotated Rules, 347-354.
Rule 4.1 prohibits a lawyer from making false statements of material fact or law to a third person or failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting the client in a criminal or fraudulent act. While this obligation sounds a lot like that in Rule 3.3, note that there is a confidentiality override in Rule 3.3, but there is no such override here. Thus, the attorney has no duty to disclose to a third party, and in fact, it appears that such disclosure would be a violation of the rules.
Rule 4.4 prohibits the lawyer, in the course of representing a client, from using means that have no substantial purpose other than embarrassment, delay or burdening of a third person. The "substantial purpose" limitation limits effective use of this rule to sanction attorneys. The rule can be used in some circumstances to address threats by attorneys to bring criminal charges or file a disciplinary complaint. See Annotated Rules, 418-19. The Code specifically prohibited threatening criminal charges to gain advantage in a civil case, D.R. 7-105, but this provision was not included in the Model Rules. Where an attorney’s conduct appears extortionary, other provisions of the Model Rules are deemed to apply. See 8.4(d).
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