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Legal Memorandum: Rules for Bad Faith Litigation in VI

Issue: Under the Model Rules of Professional Conduct, as adopted by the Virgin Islands, what rules apply to bad faith litigation?

Area of Law: Ethics & Professional Responsibility
Keywords: Bad faith litigation; Rule of professional conduct
Jurisdiction: Federal, Virgin Islands
Cited Cases: 276 F. Supp. 2d 439
Cited Statutes: Model Rules of Prof'l Conduct R. 3.1; Model Rules of Prof'l Conduct R. 3.3; Model Rules of Prof'l Conduct, R. 4.1; Model Rules of Prof'l Conduct, R. 4.4
Date: 05/01/2004

Rule 3.1

Model Rule 3.1 provides that a lawyer may not “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”  Model Rules of Prof’l Conduct R. 3.1 (2002).  Comment 1 provides that an advocate has a duty not to abuse legal procedure.  Id. cmt. 1.  Comment 2 emphasizes the importance of good faith:

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.

Id. cmt 2.

The federal District Court for the Virgin Islands has explicitly adopted Rule 3.1 of the ABA Model Rules of Professional Conduct.  See Equivest St. Thomas, Inc. v. Gov’t of Virgin Islands, 276 F. Supp. 2d 439 (D.V.I. 2003) (concluding that offending attorneys, by re-submitting identical pleadings that were previously rejected, have “arguably breached their good faith duty to assert meritorious claims as required by Rule 3.1 of the ABA Model Rules of Professional Conduct, […]

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