Within the limitations of ER 3.1. Although the rules in other states still exhort lawyers to act “zealously,” the Arizona rules haven’t included that direction for two decades. The Preamble to the Rules of Professional Conduct formerly included the word “zealously” in describing a lawyer’s conduct as an advocate. That word was deleted in changes that took effect December 1, 2003.

An objective standard determines whether a legal proceeding is frivolous, but a subjective standard applies to whether the lawyer acted in good faith. In re Levine, 174 Ariz. 146, 153 (1993). A lawyer's motives and knowledge can be inferred from the frivolousness of a claim, because a genuinely frivolous claim “will be known to be frivolous by most lawyers.” Id. at 154.

No. Comment [2] to ER 3.1 says, in part: “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 …. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is not in good faith, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, and is frivolous if the lawyer is unable either to make a nonfrivolous argument on the merits of the action taken or a good faith and nonfrivolous argument for an extension, modification or reversal of existing law.”

Yes, but ER 3.1 explicitly provides that lawyers for defendants in criminal proceedings “may nevertheless so defend the proceeding as to require that every element of the case be established.” This means that criminal defense attorneys may put the government to its proof. They cannot, however, advance frivolous claims or arguments.

Yes.

It’s comparable but necessary as a public-law remedy to supplement the private remedy of Rule 11.

If the “craftly legal maneuvering” means violating ER 3.1, then yes.

Here’s an example: A lawyer who was subject to an attorney fee award in a state court matter wanted to appeal the award but couldn’t afford the supersedeas bond. Instead, he filed an action in federal court to enjoin execution of the award, claiming a “conspiracy” between the state court judge and the defendants. The lawyer eventually moved to dismiss the litigation as moot when he could afford to post a supersedeas bond and appeal the state court judgment. In the discipline opinion, the Supreme Court said that the basis for the federal action was not an objectively reasonable legal theory under the facts. Additionally, the lawyer “freely admitted that his subjective purpose in bringing the federal suit was to delay enforcement of the state court judgment until he could raise funds for a supersedeas bond, and when this was accomplished, he sought dismissal of the federal action.”

You would not have a good-faith basis in law and fact that is not frivolous for filing a petition knowing that your client doesn’t meet the 90-day domicile requirement. As comment [2] says, an action is not in good faith “if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, and is frivolous if the lawyer is unable either to make a nonfrivolous argument on the merits of the action taken or a good faith and nonfrivolous argument for an extension, modification or reversal of existing law.”

Even if you truthfully stated that your client didn’t meet the jurisdictional requirement, you still wouldn’t have a good-faith basis in law and fact that is not frivolous in filing the petition.

Filing a claim for which there might be valid affirmative defenses is not a violation unless a jurisdiction’s rules bar doing so. ABA Formal Op. 387 (Sept. 26, 1994). The statute of limitations is simply an affirmative defense to an otherwise enforceable claim.

Yes. You know that custody orders exist. How can you make an argument for emergency orders if you don’t know who is supposed to have custody to begin with? Comment [2] to ER 3.1 explains that lawyers must “inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith and nonfrivolous arguments in support of their clients' positions.”

No. If you’re representing a client in a matter, you’re obligated to comply with ER 3.1 just like your co-counsel is and you have your own independent obligation to comply with the rules. A lawyer was disciplined after she was found to have negligently relied on her co-counsel (who did not practice civil litigation) to ensure that pleadings in a civil case were supported by law and complied with applicable procedural rules. The lawyer, who had limited Arizona civil litigation experience, admitted she failed to even try to understand the relevant legal issues.