CHAPTER 2 - 2-2 EXPEDITING MATTERS

• Jurisdiction: United States

2-2 Expediting Matters

A lawyer must take reasonable measures to expedite litigation consistent with the interests of the client.³⁷ The commentary to the rule attempts to strike a balance between a lawyer seeking reasonable delays to accommodate a personal schedule conflict and one who seeks delay simply to frustrate his opponent. The commentary applies a "competent lawyer acting in good faith" standard for evaluating whether the delay is for good cause or simply for the purpose of improper delay.

One case involving improper delay is Pavone v. West.³⁸ In Pavone an attorney refilled a matter under the accidental failure of suit statute when the original case was dismissed for failure to make proper service. Plaintiff's counsel did not advise defendant's counsel that the matter had been refiled and when the defendant did not appear, a default judgment was rendered. Later, the defendant discovered the judgment and sought to reopen it.

Though neither the trial nor the appellate court found that reopening was appropriate, especially when the defendant himself could no longer be found and was not participating in the proceedings, the Appellate Court took the opportunity to criticize the plaintiff's lawyer for her conduct. Though she defended her conduct on the grounds that she was simply being a zealous advocate, the Appellate Court noted that "(r)ealizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest in the client." Finding that it appeared that the attorney's actions were in violation of the spirit of Rule 3.2 and Practice Book § 17-22, the court noted that "(s)uch actions diminish the vitality of our bar and erode the confidence of the public by allowing justice and civility to take a backseat to gamesmanship and guile."³⁹

Similarly, a lawyer may not take measures designed only to delay or burden a third-party.⁴⁰ Indeed, as our Supreme Court has noted, "the signing of a writ by a lawyer acting as a commissioner of the Superior Court is not a mere ministerial act; that the canons of professional ethics require a...