My client wants to bring a claim, but a statute has abolished an element of it. I believe there's a good-faith argument that the abolishing statute is unconstitutional. Can I ethically proceed?

Plain-English summary

An attorney asked the panel whether it was permissible under the Code of Professional Responsibility for him to accede to his client's request to proceed with a claim that may or may not be warranted under existing law. The attorney explained that an essential element of the client's claim had been abolished by statute, but that he believed a good-faith argument could be made that the abolishing statute was unconstitutional.

The panel quoted DR 7-102(A)(2), which bars a lawyer from knowingly advancing a claim or defense unwarranted under existing law, except where the lawyer can support the claim or defense by a good-faith argument for an extension, modification, or reversal of existing law. The panel stated that it could not speculate as to the merits of the attorney's claims. Because the attorney sincerely believed that a good-faith argument could be made on his client's behalf, the panel took the position that it was permissible under the Code of Professional Responsibility for him to proceed in the matter.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct, and it applies the ABA Model Code of Professional Responsibility's Disciplinary Rules then in effect. 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 Treat this page as historical context, not current guidance.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: A statute has abolished an element of my client's claim, but I think there's a good-faith argument that the statute is unconstitutional. Can I bring the claim anyway?

A: Yes, according to this opinion, as long as the attorney sincerely believes a good-faith argument can be made; the panel held this falls within DR 7-102(A)(2)'s exception for claims supported by a good-faith argument for extension, modification, or reversal of existing law.

Q: Does the panel evaluate whether my constitutional argument is actually likely to succeed?

A: No. The opinion states the panel "cannot, of course, speculate as to the merits of the attorney's claims"; it looked only at whether the attorney sincerely believed a good-faith argument existed.

Background and rules framework

The opinion applies DR 7-102(A)(2) of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, which prohibits a lawyer from knowingly advancing a claim unwarranted under existing law unless it is supported by a good-faith argument for extension, modification, or reversal of that law.

Citations and references

Rules of Professional Conduct:

• RI DR 7-102(A)(2) (advancing a claim unwarranted under existing law, with the good-faith-argument exception)

Statutes:

• None cited by name; the opinion refers generally to "an essential element of the claim" having "been abolished by statute."

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2088-18.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #88-18, REQUEST #21
Issued July 28, 1988

An attorney seeks Panel advice as to whether it is permissible under the Code of Professional Responsibility for him to accede to his client's request to proceed with a claim which may or may not be warranted under existing law.

The attorney advises the Panel that an essential element of the claim his client wishes to make has been abolished by statute. The attorney states, however, that he believes a good faith argument can be made that the abolishing statute is unconstitutional.

Disciplinary Rule 7-102 provides, in pertinent part:

(A) In his representation of a client a lawyer shall not . . . (2) knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law. (emphasis supplied)

The Panel cannot, of course speculate as to the merits of the attorney's claims. The Panel takes the position that since the attorney sincerely believes that a good faith argument can be made on his client's behalf, it is permissible under the Code of Professional Responsibility for him to proceed in the matter.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.