- 23 -
By the time of the September 12 letter and the status
report, Mr. Sulla had ample time to review petitioner’s initial
arguments. We believe from Mr. Sulla’s statements in the
surreply that he knew those arguments were frivolous but, in
order to gain a tactical advantage, did not disclaim them. Thus,
Mr. Sulla knowingly maintained petitioner’s frivolous arguments,
and that constitutes bad faith.5
b. The 861 Argument
Moreover, we believe that Mr. Sulla was reckless in making
the 861 argument. The Court of Appeals for the Ninth Circuit has
not defined the term “reckless” for purposes of determining
whether an attorney acts in bad faith by recklessly making a
5 Mr. Sulla’s conduct with respect to petitioner’s initial
arguments (and, indeed, the 861 argument) also raises questions
under the Rules. Rule 201(a) requires practitioners to carry on
their practice in accordance with letter and spirit of the Model
Rules of Professional Conduct of the American Bar Association
(the Model Rules). In pertinent part, Model Rule 3.1 states: “A
lawyer shall 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”. Model Rule 3.2
requires a lawyer to make reasonable efforts to expedite
litigation. Model Rule 3.3 imposes on lawyers a duty of candor
towards the tribunal, which includes the requirement that a
lawyer not knowingly make a false statement of law to the
tribunal. A comment following Model Rule 3.3 states: “Legal
argument based on a knowingly false representation of law
constitutes dishonesty toward the tribunal.” We question whether
Mr. Sulla’s “negotiating posture” and his apparent advice to
petitioner that he “reserve” his initial arguments violate Model
Rules 3.1 and 3.2. We also question whether Mr. Sulla breached
his duty of candor to the Court when, in the status report, he
reported that petitioner would not waive or withdraw arguments
that Mr. Sulla knew to be frivolous and was maintaining only to
gain some negotiating advantage.
Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: May 25, 2011