V. Lawyers' Ethical Duties to Avoid Delay and Expedite Litigation

LibraryProfessional Responsibility in Litigation (ABA) (2016 Ed.)

V. Lawyers' Ethical Duties to Avoid Delay and Expedite Litigation

Following immediately on the heels of the prohibition against the pursuit of frivolous claims or contentions, Model Rule 3.2, titled "Expediting Litigation," requires lawyers to "make reasonable efforts to expedite litigation consistent with the interests of the client."300 Facially, this rule appears to focus solely on when lawyers have to "expedite," i.e., take actions that would cause litigation to move through the courts more rapidly than it would under ordinary circumstances, but the reference in the comment to Model Rule 3.2 to "dilatory practices" underscores that "expedite" is not truly being used in its traditional, limited sense.301 The Model Rule 3.2 duty to make reasonable efforts to expedite litigation encompasses the duty not to engage in improper delay. This ethical obligation applies on appeal just as it does at the trial court level.302 Thus, in addition to the risks discussed above, the attendant delay resulting from pursuit of frivolous appeals or frivolous contentions on appeal can trigger discipline for a Rule 3.2 violation.303

Lawyers' duty to expedite litigation under Rule 3.2 is often discussed concurrently with the ethical duty to generally be diligent and prompt in handling client matters imposed by Model Rule 1.3.304 There are important differences between the Rule 3.2 and Rule 1.3 duties, however. The most important difference is that Rule 3.2, consistent with the fact that Rule 1.3 already requires lawyers to diligently and promptly represent clients, recognizes clients' interests as limiting any duty that could be imposed on lawyers to expedite proceedings. An ethics opinion issued by the State Bar of Arizona provides an example of a circumstance where the client's interest meant that a lawyer could appropriately cause some delay in the entry of a judgment by not approving the form of the judgment drafted and prepared by the opposing party.305

In Opinion 90-16, the Arizona Committee concluded that a lawyer who was "aware of another pending case in which the ruling on appeal, when rendered, could justify reconsideration or reversal of the court's decision in this case" could refrain from approving the form of judgment proposed by the opposing party without violating Rule 3.2.306 The reasoning for that conclusion was twofold. First, the interests of the lawyer's client in seeking "to avoid having to pay fees to move for a new trial or to appeal until after there is a ruling on the appeal in the other case" appeared to provide sufficient justification for the lawyer to decline approval.307 Second, the Arizona Committee simply did "not believe that a lawyer commits an ethical violation if he takes advantage of time limits provided for" in the rules and pointed to the fact that Arizona's Rules of Civil Procedure provided an alternate path that a prevailing party could take to obtain entry of judgment even in face of "inaction" by the opposing counsel.308

At least as to the first justification, the Arizona Committee's analysis is difficult to reconcile with the language in the comment to Model Rule 3.2 explaining that "[r]ealizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client."309 The Arizona Committee's second justification, however, carries significant weight (perhaps enough to override its seemingly flawed first justification) as existence of an alternate procedure delineated by rule for obtaining entry of judgment can fairly be read to mean that the "delay" under consideration was not "otherwise improper."

Lawyers' ability to stretch in defending against an alleged Rule 3.2 violation on the basis that delay was in the client's interests is not limitless.310 A Fifth Circuit opinion affirming a district court's disbarment order, for example, readily demonstrates that lawyers who engage in improper efforts, including the filing of a frivolous appeal, "for the purpose of delaying an inevitable judgment against their clients" will find no solace in arguing that their clients' interests were furthered by delay.311

Appellate deadlines are extremely important, and lawyers who miss a deadline for filing a notice of appeal, or who subsequently miss briefing or other deadlines established by rules or court orders, can visit devastating consequences on their clients.312 Given...

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