Does a lawyer have to file a lawsuit the client demands if the lawyer believes it has no merit?

Plain-English summary

The committee was asked whether general counsel should comply with a client's direction to commence litigation that counsel believes is without merit. It answered no.

The committee held that a lawyer's obligation to maintain the highest standards of ethical conduct cannot be modified or diminished by a retainer agreement, quoting Drinker's Legal Ethics that accepting a retainer as general counsel implies a purpose to observe the Canons and creates no obligation to violate them to further the client's interest. The adoption of the Code did not change that view.

The committee pointed to the Code's express provisions: where the lawyer is convinced a claim is not warranted under existing law and cannot be supported by a good-faith argument for its extension or modification, he should not advance it (DR 2-109(A)(2); DR 7-102(A)(2)), with EC 7-1, 7-4, 7-5 and 7-19 and DR 2-109(A)(1) and 7-102(A)(1) to the same effect. The committee stressed that it is the lawyer's conscience and judgment that must dictate the result, not the client's.

Drawing on N.Y. State 469 (1977), where it had held it improper for a lawyer to interpose a general denial knowing the client had no valid defense, the committee said the same principles preclude commencing litigation the lawyer believes is without merit, and that employment under a general retainer is irrelevant to the ethical rule. The question was answered in the negative.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the duty to bring only meritorious claims is now governed by Rule 3.1, allocation of authority by Rule 1.2, and a lawyer's independent judgment by Rule 2.1). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a client force its lawyer to file a suit the lawyer thinks is meritless?

A: Under this opinion, no. The committee held the lawyer is not required to commence litigation he believes is without merit, and the client's direction does not control.

Q: Does a general retainer change the answer?

A: No. The committee held that a retainer cannot diminish ethical duties and that employment under a general retainer is irrelevant to the rule.

Q: What is the standard for refusing?

A: The lawyer's good-faith belief that the claim is not warranted under existing law and cannot be supported by a good-faith argument to extend, modify, or reverse the law. The committee located that standard in DR 2-109(A)(2) and DR 7-102(A)(2).

Background and rules framework

The opinion applies DR 2-109(A) (refusing employment to advance an unwarranted claim) and DR 7-102(A) (not knowingly advancing an unwarranted claim), with EC 7-1, 7-4, 7-5 and 7-19 on the bounds of zealous representation. The current Model Rule analogues are Rule 3.1 (meritorious claims and contentions), Rule 1.2 (scope of representation and allocation of authority), and Rule 2.1 (the lawyer's independent professional judgment).

Citations and references

Rules of Professional Conduct:

• MR 3.1 (meritorious claims and contentions)
• MR 1.2 (scope of representation; allocation of authority)
• MR 2.1 (advisor; independent professional judgment)
• NY EC 7-1, EC 7-4, EC 7-5, EC 7-19; DR 2-109(A)(1)-(2), DR 7-102(A)(1)-(2)

Other opinions cited:

• N.Y. State 469 (1977): improper to interpose a general denial knowing the client has no valid defense

See also

• NY State Bar Op. 475: Suing on a claim the limitations period has run on
• NY State Bar Op. 483: Suing opposing counsel for defamation mid-case

Source

• Landing page: https://nysba.org/opinion-472/