Wherein the Author Tries To Explain 3.1 Using Bad Math Analogies
Yesterday, I failed to follow my own advice and answered a “social media subpoena.” You know the social media subpoena—the tag on Facebook or the mention on Twitter or the [whatever] on [platform I don’t use], from someone who wants you to answer a legal question.
I typically advise people to tread carefully before answering those questions and then maybe not answer them at all—they may not be competent to answer; they may unknowingly have or be creating a conflict; for all they know the commenter “DogLover53202” is the judge in the case and they’ve just insulted her. But anyway. This post isn’t about the “social media subpoena” itself (which was a thread about whether it’s acceptable for an out-of-state attorney to advise a Wisconsin legislator about the feasibility of de-certifying the state’s electoral votes a year after the election) or why I answered it.
This post is about what happens when your client asks you to get to “X” despite all available authority telling you “X” is not possible (which I speculate may have happened in the above transaction). “We need to enforce this poorly drafted restrictive covenant.” “I want maintenance from my spouse despite only being married for 9 months and voluntarily waiving it.” “I don’t care what the law says, just fix it.”
Can you get to X?
Model Rule 3.1 (Wisconsin non-identical counterpart here) tells us we are not supposed to bring or defend proceedings without a factual and legal basis, unless we can assert a good faith argument to extend, modify, or reverse existing law. (There is another exception allowing attorneys to defend criminal proceedings and others that may result in incarceration (Model Rule) or deprivation of liberty (Wisconsin); in those cases attorneys can require that the prosecution establish all elements of the case, but that’s not the focus here.)
Central to the Rule here is “good faith.” That term isn’t really defined in the Model or Wisconsin Rules, and it’s going to be a fact-intensive analysis. To expand on the (tortured, as social media tends to be) analogy I posted on Twitter, let’s say that your client has asked you to argue that 2 + 2 does not equal 4.
Now, “I can’t do that, sorry” may be a perfectly reasonable response (particularly if you don’t have the skill, time, or interest to figure out what 2 + 2 might equal, or if the specific question this analogizes to is well settled and recently affirmed). But if you want to try to figure out a way to get where your client wants to go, you can do so (though I would strongly suggest avoiding promising you can (because, after all, you have a duty to be candid with your client and tell them “no” when necessary).
If your research has you concluding that 2 + 2 = 11, you may have a good faith argument, because 2 + 2 does equal 11, in Base 3.
But if your research keeps hammering that 2 + 2 = 4 and only 4, then you don’t have that argument and you can’t ethically advance it. What happens if your research gets you to 2 + 2 = 29,574? It may be time to consult with a math expert, or check whether your research is as flawed as this analogy.
Now, you may get an insistent client who not only wants you to argue that 2 + 2 doesn’t equal four, but wants you to argue that 2 +2 equals brine shrimp. That sort of thing may be good news—that sort of non-sequitur may be dismissed out of hand. (It’s hard to say no, I know, but here, the need to do so is clear.)
And, as you know, this blog is not about politics, but I’ve never pretended not to have a bias. So, needless to say, my conclusion about the election memo was that it lands somewhere between 29,574 and brine shrimp. But that’s a post for another day.
