Comment
[1] The advocate has a duty to use legal procedure
for the fullest benefit of the client’s cause, but also a duty
not to abuse legal procedure. The law, both procedural and substantive,
establishes the limits within which an advocate may proceed. However,
the law is not always clear and never is static. Accordingly, in determining
the proper scope of advocacy, account must be taken of the law’s
ambiguities and potential for change.
[2] The filing of an action or defense or similar
action taken for a client is not frivolous merely because the facts
have not first been fully substantiated or because the lawyer expects
to develop vital evidence only by discovery. Lawyers, however, are required
to inform themselves about the facts of their clients’ cases and
the applicable law and determine that they can make good faith arguments
in support of their clients’ positions. Such action is not frivolous
even though the lawyer believes that the client’s position ultimately
will not prevail. The action is frivolous if the lawyer is unable either
to make a good-faith argument on the merits of the action taken or to
support the action taken by a good-faith argument for an extension,
modification, or reversal of existing law.
[3] In criminal cases or proceedings in which the
respondent can be involuntarily institutionalized, such as juvenile
delinquency and civil commitment cases, the lawyer is not only permitted,
but is indeed required, to put the government to its proof whenever
the client elects to contest adjudication. The lawyer’s obligations
under this rule are subordinate to federal or state law that entitles
a defendant in a criminal matter to the assistance of counsel in presenting
a claim or contention that otherwise would be prohibited by this rule.
