Friday, September 7, 2007

Pressing Claim Without Evidence Violates Rule 3.1

An attorney represented a client in an arbitration matter that resulted in an adverse decision. At the client's insistence, he filed a motion to vacate alleging fraud, corruption or undue means on the part of the arbitrator. Thereafter, he persisted in pressing the claim despite the failure of the client to produce evidence to support the contention.

Bar disciplinary charges were brought for instituting or maintaining a frivolous claim in violation of Rule 3.1. The Connecticut Appellate Court affirmed the finding of misconduct. The initial claim was made in good faith based on the client's claims and thud did not run afoul of the rule. However, the lawyer crossed the line by not withdrawing the contention after the client had refused to provide a promised affidavit. The court also resolved an inconsistency in prior case law by holding that it reviews bar cases under a clearly erroneous standard: the "distinction between clearly erroneous and substantial evidence is not an academic one." A concurring opinion would affirm on narrower grounds, expressing concern about the suggestion that an attorney cannot proceed with a claim absent a client affidavit.(Mike Frisch)

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