Just a few days ago, the Missouri Supreme Court issued an opinion that raises an interesting question. Here is the story, in a nutshell: suppose attorney A hires attorney B to help him file a series of claims. Now assume that the claims are frivolous. Clearly Attorney B would be subject to discipline and sanctions under both rules of professional conduct and rules of procedure - assuming Attorney B knew the claims were frivolous. But how about Attorney A. He was not practicing law; he was a client.
The court found the lawyer should be disciplined and, in fact, imposed a pretty severe sanction for the conduct. The case is called In re Lawrence J Hess and it is available here. (Thanks to the Legal Profession blog for the link.). One judge wrote a concurring opinion arguing that the rule on frivolous litigation should only apply to the lawyer who acted as a lawyer not to the one acting as a client. One judge wrote a dissenting opinion finding the conduct did not violate the rules at all.
The concurring opinion makes an interesting point. She argues that the conduct violated rule 8.4 (conduct prejudicial to the administration of justice), but that the rule related to filing frivolous claims should apply only to the lawyer acting as an advocate. It is this lawyer who has the duty to exercise independent professional judgment to decide whether the claim is frivolous and who has the duty to tell the client it should not be filed.
This is a close call for me. I understand the logic of the argument in the concurring opinion, but it is not inconsistent with other rules to say that they apply to lawyers even when they are not in the practice of law. In the end, given that the sanction would not change regardless of whether it is determined that the attorney violated one or two rules, the issue may just be academic.
