Vt. R. Prof. Cond. 3.1
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, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration or hospitalization, may nevertheless so defend the proceeding as to require that every element of the case be established.
Comment
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.
[2] 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. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.
[3] The lawyer's obligations under this rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this rule.
Vt. R. Prof. Cond. 3.1
Board's Note-2022 Amendment
The amendment makes clear that a lawyer who is representing a client in a matter that could result in the client being placed on an order of hospitalization does not violate the rule by holding the State to its proof. The change conforms to the ABA Model Rule.
Reporter's Notes-2009 AmendmentV.R.P.C. 3.1 is amended to conform to the changes in Model Rule 3.1.
The ABA Reporter's Explanation is as follows:
TEXT:
Add reference to "law and fact"
This change makes explicit the requirement that a claim must have a nonfrivolous basis in both law and fact. See also Comment [2]. No change in substance is intended.
COMMENT:
[2] A new sentence has been added to remind lawyers that they must act reasonably to inform themselves about the facts and law pertinent to a claim they will make on behalf of a client. The reference to a client's purpose to harass has been dropped because the client's purpose is not relevant to the objective merits of the client's claim.
[3] This new Comment acknowledges the primacy of constitutional law that might require a lawyer to take action on behalf of a criminal defendant that otherwise would violate this Rule.