SCR 20:3.1. Meritorious claims and contentions

Meritorious claims and contentions

(a) In representing a client, a lawyer shall not:

(1) knowingly advance a claim or defense that is unwarranted

under existing law, except that the lawyer may advance such claim or

defense if it can be supported by good faith argument for an extension,

modification or reversal of existing law;

(am) A lawyer providing limited scope representation pursuant to

SCR 20:1.2(c) may rely on the otherwise self-represented person’s

representation of facts, unless the lawyer has reason to believe that such

representations are false, or materially insufficient, in which instance the

lawyer shall make an independent reasonable inquiry into the facts.

(2) knowingly advance a factual position unless there is a basis for

doing so that is not frivolous; or

(3) file a suit, assert a position, conduct a defense, delay a trial or

take other action on behalf of the client when the lawyer knows or when

it is obvious that such an action would serve merely to harass or

maliciously injure another.

(b) A lawyer for the defendant in a criminal proceeding, or the

respondent in a proceeding that could result in deprivation of liberty, may

nevertheless so defend the proceeding as to require that every element of

the case be established.

WISCONSIN COMMITTEE COMMENT

This Wisconsin Supreme Court Rule differs from the Model Rule in expressly establishing a

subjective test for an ethical violation.

ABA 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.

le in expressly establishing a

subjective test for an ethical violation.

ABA 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. What is required of lawyers, however, is that they 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, however,

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] The lawyer's obligations under this Rule are subordinate to federal or state constitutional

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.