Creativity is the Lifeblood of the Law

By: Craig S. Brodsky | 6.11.24 | Media

On May 31, the District of Columbia’s Board on Professional Responsibility (D.C. Board) recommended that Rudy Giuliani be disbarred because he signed multiple, frivolous, meritless pleadings in violation of Pennsylvania Rule 3.1. Guiliani’s case is extreme, but the Report and Recommendation deftly analyzes whether allegedly frivolous pleadings violate the Rules of Professional Conduct.

The relevant versions of Rule 3.1 (e.g., ABA Model Rule 3.1, Md. Rule 19-303.1, D.C. Rule of Professional Conduct 3.1 and 204 Pa. Code Section 3.1) all prohibit counsel from making frivolous arguments. Some jurisdictions, like Maryland, have rules that allow lawyers to defend a case with nothing more than requiring the claimant to prove every element of its case, while others, like D.C., limit this principle to criminal cases. Other exceptions, such as making a good faith argument for modification of existing law, also exist. But all jurisdictions require lawyers to make only meritorious arguments.

In Maryland, a lawyer violates Rule 3.1 when “the lawyer is unable… to make a good faith argument on the merits of the action taken.” Atty. Griev. Comm’n v. Davis, 375 Md. 131 (2003).

Numerous Maryland opinions address Rule 3.1, including Atty. Griev. Comm’n v. Mixter, 441 Md. 416, 511, 109 A.3d 1, 58 (2015) (improper use of subpoenas); Atty. Griev. Comm’n v. Dyer, 453 Md. 585 (2017) (advancing arguments on appeal); Atty. Griev. Comm’n of Md. v. Phillips, 451 Md. 653 (2017) (filing of a frivolous motion to quash); Atty. Griev. Comm’n v. Gisriel, 409 Md. 331 (2009) (ignoring a contractual requirement to mediate prior to initiating litigation); Atty. Griev. Comm’n v. Davis, 375 Md. 131 (2003) (filing of suit without attempting to determine the proper identity of the defendant); Atty. Griev. Comm’n v Zdravkovich, 362 Md. 1 (2000) (improper removal of a Texas action to federal court in Maryland); Atty Grievance Comm’n v. Alison, 349 Md. 623, 709 A.2d 1212 (1998) (filing complaint with a RICO count with absolutely no factual foundation in the hopes of obtaining treble damages).

In every case, the court scrutinizes whether the lawyers informed themselves about the facts of the case and the applicable law to determine if the arguments advanced in support of the clients’ positions were made in good faith. See Comment [2] to Md. Rule 19-303.1

Both Pennsylvania and Washington, D.C. use an objective test to determine whether an argument has a non-frivolous factual or legal basis. In re Spikes, 881 A.2d 1118 (D.C. 2005); Adams v. Dept. of Pub. Welfare, 781 A.2d 217, 220 n.2 (Pa. Commw. Ct. 2001). As the D.C. Board noted in the Guiliani Report, consideration should be given to ambiguity or clarity in the law, the plausibility of the position taken, and the complexity of the issues. Report at 27 (citing Spikes at 1125). Ultimately, a claim is frivolous if, after undertaking “an ‘objective appraisal of merit’ . . . a reasonable attorney would have concluded that there was not even a ‘faint hope of success on the legal merits’ of the action being considered.” Id. at 28 (internal citations omitted).

In my experience, Courts and disciplinary authorities rarely investigate claims based solely on alleged violations of Rule 3.1. Rather, charges for filing frivolous pleadings are often intertwined with an award of sanctions per Md. Rule 1-341 and/or involve claims of violations of the rules regarding competence (1.1), diligence (1.3), failure to communicate (1.4), and conduct prejudicial to the administration of justice (8.4(d)).

Disciplinary authorities must however balance the need to prevent frivolous filings with a lawyers’ obligations to the client. To this end, the Spikes Court cautioned against chilling zealous advocacy on behalf of a client to press for change and reform in the law because “the law is not always clear and never is static.” Indeed, seminal cases like Brown v. Board of Education and Miranda v. Arizona exist only because creative lawyers and clients pushed us forward.

I urge all lawyers to continue to be creative but reasonable. The Maryland Courts want you to be creative. As the Appellate Court stated over 30 years ago in Needle v. White, 81 Md. App. 463, 470-71 (1990), when reviewing an award of sanctions and discussing the need to eliminate abusers of the judicial process, “The inherent danger . . . is that [overzealous] pursuit of the objective may result in . . . stifling the enthusiasm or chilling the creativity that is the very lifeblood of the law.”

Craig Brodsky - Blog-HeadshotCraig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His Legal Ethics column appears monthly in The Daily Record. He can be reached at

This article originally appeared in The Daily Record on June 6, 2024.


Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at