Model Rule 3.1: Meritorious Claims and Contentions

When it applies

This comes up whenever a lawyer is deciding whether to file a lawsuit, raise a defense, or take a legal position, and is tested on the MPRE through fact patterns involving weak, unsupported, or purely tactical filings. It also frequently overlaps with duties of candor and diligence, since the line between zealous advocacy and frivolousness is a recurring exam theme.

What the rule requires

• A lawyer must have a factual basis for claims or defenses asserted.
• A lawyer must have a legal basis for the position, which can include a good faith argument to extend, modify, or reverse existing law.
• The standard is objective: whether a reasonable lawyer could find a non-frivolous basis, not whether the lawyer subjectively believes they will win.
• The rule applies to both plaintiffs bringing claims and defendants raising defenses.
• A criminal defense lawyer (or a lawyer representing a respondent who could lose personal liberty) may nevertheless defend the proceeding so as to require the prosecution to prove every element, even without an affirmative non-frivolous basis for disputing guilt.

Exceptions

• Criminal defendants and respondents facing loss of liberty may put the prosecution to its proof regardless of whether there's a separate non-frivolous basis for contesting guilt.
• An action is not frivolous merely because the lawyer believes the client's position will ultimately not prevail; the standard is whether a non-frivolous argument can be made, not likelihood of success.

How the MPRE tests Model Rule 3.1

• Students often confuse 'frivolous' with 'likely to lose'; a weak but arguable claim is not frivolous under this rule.
• MPRE questions test whether students remember that good faith arguments to change existing law are expressly permitted, not sanctionable.
• Students forget the special carve-out for criminal defense work, thinking Rule 3.1 requires an affirmative basis even when merely forcing the prosecution to meet its burden.
• The rule is sometimes confused with Rule 3.2 (expediting litigation) or Rule 3.4 (fairness to opposing party), when the real issue is simply whether the claim itself had any basis.