June 2023 Ethically Speaking - To Make (or Not Make) a Frivolous Argument: What if It Turns Out Not to Be Frivolous?

by Robert M. Dato

Imagine that you represent a litigant and there is a separately represented litigant on the same side. In this example, let us assume that it is a codefendant. Your client wishes to make a motion that, if successful, would entitle him to attorney fees. You thoroughly research the issue and, in your opinion, the motion would be based on a frivolous argument. You can find no way around this problem. You therefore refuse to file the motion.

So far, so good, right?

On the last day such a motion can be filed, the codefendant’s attorney files a motion that, if successful, would entitle his client to attorney fees. The motion is based on the same argument that you have concluded is frivolous. In fact, seeing the motion only reinforces your view, and you so inform your client.

The opposing party’s lawyer then files an opposition that, in your opinion, nibbles around the edges but largely misses the point. However, you are silently confident that the judge (or his staff) will conduct a perfunctory amount of research and deny the motion.

Except that doesn’t happen. The judge awards the codefendant a substantial attorney fee award. And it’s too late for you to file a similar motion.

Have you breached your ethical duty to zealously advocate on behalf of your client? Have you committed malpractice? Will you be thrown out of your Inn of Court?

Before such questions can be addressed (well, at least the first two), it is perhaps best to start where our hypothetical lawyer started.

What does “frivolous” mean?
The seminal authority on this issue in California is still In re Marriage of Flaherty, 31 Cal. 3d 637 (1982). The issue in Flaherty was whether an appeal was frivolous. After examining previous opinions dealing with frivolous appeals, our Supreme Court held: “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” Id. at 650 (emphasis added).

This standard has been applied generally to any legal claim, not just an appeal. Parrish v. Latham & Watkins, 3 Cal. 5th 767, 776 (2017) (“A claim is unsupported by probable cause only if any reasonable attorney would agree [that it is] totally and completely without merit.”). And for the purposes of the hypothetical at the beginning of this article, the italicized language from Flaherty above is the key. In order to defeat a claim of frivolousness, one must find a theoretical reasonable lawyer who would make the argument.

The fact that the codefendant’s lawyer in the hypothetical made the argument does not end the inquiry. After all, published decisions are rife with examples where lawyers made arguments that were later deemed frivolous.

The “problem” here is that a judge found the motion meritorious. Even if the attorney fee award were to be later reversed on appeal, the fact that a judge granted the motion almost assuredly means that the motion was not frivolous. This rationale has been applied in related contexts. For example, in Parrish v. Latham & Watkins, supra, 3 Cal. 5th 767, our Supreme Court held that the denial of a summary judgment motion established probable cause, meaning that the action was not frivolous, even when the judge who denied summary judgment later found the action to have been brought in bad faith. Id. at 778. And in San Bernardino Cmty. Hosp. v. Meeks, 187 Cal. App. 3d 457 (1986), the Court of Appeal held that an appeal was not frivolous where at least one of the justices on the panel believed the standard of “frivolousness” had not been met. Id. at 471 (“the mere circumstance of this diversity of views among the panel necessarily demonstrates that the evidence on the side of ‘solely for delay’ is not clear and convincing”).

So even if our hypothetical lawyer correctly concluded that the motion was frivolous, the judge’s ruling establishes that it was not.

Breach of the Duty to Zealously Advocate
ABA Model Rule 1.3 deals with the lawyer’s duty of diligence. A comment to this rule states: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.” Rule 1.3 Diligence – Comment, ABA, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence/comment_on_rule_1_3/.

The above comment was not adopted as part of Rule 1.3 of the California Rules of Professional Conduct. See Rule 1.3 Diligence (Redline Comparison to the ABA Model Rule), https://www.calbar.ca.gov/Portals/0/documents/rules/Rule_1.3-Exec_Summary-Redline.pdf. In fact, the term “zealous advocacy” does not appear in the California Rules, nor does any explicit limitation on zeal. Nonetheless, it has long been the law in this state that:

[t]he duty of a lawyer both to his client and to the legal system, is to represent his client zealously within the bounds of the law. . . . Once an attorney is appointed to represent a client, he assumes the authority and duty to control the proceedings. The scope of this authority extends to matters such as deciding what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or reject, what motions to make, and most other strategic and tactical determinations.

People v. McKenzie, 34 Cal. 3d 616, 631 (1983) (emphasis added); accord, People v. M.H., 81 Cal. App. 5th 299, 307 (2022). In a related context, our Supreme Court has observed that “in the course of a trial there be but one captain per ship.” Blanton v. Womancare, Inc., 38 Cal. 3d 396, 404 (1985).


Here, our hypothetical lawyer was attempting to advocate “within the bounds of the law” when he declined to file what he thought was a frivolous attorney fee motion. Later events—the judge’s ruling—showed that the motion would have been within those bounds. But cases such as McKenzie and M.H. would appear to support the conclusion that choosing not to file the motion is not a breach of the duty of zealous advocacy.

Breach of the Standard of Care (Malpractice)
In all likelihood, our hypothetical attorney’s worst fear is that the client sues him for malpractice. The client would argue that the lawyer’s failure to file the attorney fee motion cost the client a significant fee award. And while there would appear to be “but for” causation here, it is helpful to review the elements of a malpractice claim. In Budd v. Nixen, 6 Cal. 3d 195 (1971), our Supreme Court held:

The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.

Id. at 200. Here, a key element to our hypothetical lawyer’s defense is the first element, i.e., prudence that other lawyers commonly possess. Assuming that our hypothetical lawyer’s analysis of the frivolity of the attorney fee motion was at least persuasive, it should not be difficult to establish that some reasonably prudent lawyers would have concluded likewise. Such a showing would defeat a claim that our hypothetical lawyer breached the standard of care in declining to file the attorney fee motion.


Moreover, our hypothetical lawyer should be able to invoke the judgmental immunity doctrine. Under that doctrine, attorneys are immunized from liability “resulting from an honest error in judgment concerning a doubtful or debatable point of law.” Davis v. Danrell, 119 Cal. App. 3d 883, 887 (1981). Courts analyze whether the state of the law was unsettled at the time and whether the advice was based upon the exercise of informed judgment. Village Nurseries, L.P. v. Greenbaum, 101 Cal. App. 4th 26, 37 (2002). Summary judgment is proper where the attorney “conducted a thorough, contemporaneous research effort, demonstrated detailed knowledge of legal developments and debate in the field, and made a decision which represented a reasoned exercise of an informed judgment grounded upon a professional evaluation of applicable legal principles . . . .” Stanley v. Richmond, 35 Cal. App. 4th 1070, 1094 (2014). Our hypothetical attorney appears to have checked all the boxes necessary to claim judgmental immunity.

Conclusion: No Rule Can Provide Guidance for Every Situation
Our hypothetical example is just one instance of where no rule clearly applies. The Preamble to the ABA Model Rules of Professional Conduct, entitled “A Lawyer’s Responsibilities,” anticipates these situations:

“In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” Model Rules of Professional Conduct: Preamble & Scope, ABA, available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope/.

At the end of the day, common sense dictates that the decision not to file a frivolous—or even arguably frivolous—motion cannot form the basis of a breach of ethical or professional duties.

Robert M. Dato is Of Counsel to Buchalter, A Professional Corporation, in Irvine. Bob’s primary practice is appellate law and he is co-chair of Buchalter’s appellate department. Bob is a member of the OCBA Professionalism and Ethics Committee and is former chair of the State Bar’s Committee on Administration of Justice. He can be reached at rdato@buchalter.com.