Delaying a case to benefit a client is unethical.
I am involved in civil litigation and it would be to my client’s benefit to delay these matters as long as I can. For whatever reason, the opposing counsel is not being aggressive on the case. Is it ethical for me to use these delaying tactics or should I proceed?
In this modern world of litigation, delay tactics are usually frowned upon by all courts. Many county courts in the civil division have fairly rigorous discovery, pretrial and then trial schedules.
But if there is an opportunity to delay the case, and the delay would benefit the client, obviously an advocate has to consider that. On the other hand, every lawyer has a duty to the court as a court officer. That duty is to make sure litigation is done expeditiously.
The pertinent Rule of Professional Conduct governing a lawyer’s responsibility to timely move a case is set forth in Rule 3.2:
“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
A reading of the rule would suggest if the interest of the client is to delay the case, then efforts to delay would be ethical and appropriate. But the comment to the rule suggests to the contrary:
“Dilatory practices bring the administration of justice into disrepute.”
As one continues to read the comment to Rule 3.2, the following is also noted:
“The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”
Therefore, it would appear that delaying for the purpose of helping a client by itself is not sufficient to overcome the ethical obligation under Rule 3.2. Some delay might be acceptable, but excessive delay would not be. It is not a sufficient excuse that the other side is in agreement with the delay unless the court concurs.
The lawyer’s obligation is not only to the client but to the court. The court views delay as contrary to the administration of justice, and with good reason. Every lawyer knows that delayed litigation often creates public distrust in the legal system and also can cause serious injustices to clients who are subject to these kind of delays.
Every lawyer should be aware that delay itself, even if it is in the client’s interest, is not always an acceptable tactic. Sometimes delays are inevitable. Most lawyers have a very hectic private practice. In a perfect world, a lawyer would like to limit his or her client load. But the perfect world doesn’t exist. People can’t afford the true rates of a lawyer and lawyers are often overextended. Obviously, being overextended can cause delay in cases, and to some extent it is understandable. But developing a practice of delaying a client’s case because time will benefit a client is not an acceptable or ethical goal. A lawyer could potentially be subject to disciplinary action for a delay, even if the client would benefit.
Clients should be given lawyers’ contact information when lawyers leave a firm.
I left my former law firm and I attempted to close down my email account with that firm. Since I left, the firm has opened it up again. I want them to close it down and not look at any emails. Ethically, can that be done?
When a lawyer departs from a law firm, particularly if the lawyer takes cases with him or her, there are always minor hostilities and tension that create problems, at least in the short run, with the former employer. Generally, when a lawyer leaves a firm, clients are allowed to make a choice as to whom the clients wish to remain with. Usually, a letter is sent. If the client chooses to stay with the former firm, then the firm keeps the file. If a client wants to go with the departing lawyer, then the lawyer keeps the file. After that, there is normally a resolution of costs and fee sharing.
With email accounts, it gets somewhat more difficult. Clients get used to emailing a certain account. Can the old firm keep the email account of the departing lawyer open?
It appears that the old firm could do so, assuming the email account was the firm’s email as opposed to a personal email account of the departing lawyer.
There has been an interesting opinion on this subject by the Philadelphia Bar Association’s professional guidance committee. The opinion is titled 2013-4 and was written and published in September. In that case, the departing lawyer had left and put a “bounceback” in the email. Therefore, when emails were sent to his former firm’s email account in his name, they would bounce back. The former firm then opened the email account and got rid of the bounceback in order to look at the emails.
The committee was asked about the ethical conduct of either side and found it was permissible for the former firm to keep the email open and to review the email “to the extent necessary to carry out the duties identified above.” These duties were to protect the clients’ interests during the transition and to ensure deadlines were met, among other matters.
The committee noted that Rule of Professional Conduct 1.4 involving communication with a client “obligates an attorney to keep clients up to date about the status of the matter, comply with client’s requests for information, and explain a matter so the client can make informed decisions.” Therefore, the committee believed there was an obligation on the part of a law firm to immediately provide to inquiring and former clients sufficient information that would allow the client to make prompt contact with the ex-partner prior to offering the firm’s services as an alternative.
The committee noted if a document is received that was inadvertently sent to the old email but should have gone to the prior lawyer, the former firm should notify the departing lawyer. Finally, the committee noted that an email must then be forwarded to the departing lawyer and the clients should be advised of the departing lawyer’s location, address and phone number.
Whether it is emails, letters or telephone calls, once a lawyer leaves, the client who calls looking for the former lawyer should be given contact information. Statements by the firm’s receptionist that he or she doesn’t know where the lawyer is or that the lawyer hasn’t been seen for days are not acceptable. This would be misleading to the client and also a violation of the duty to communicate.
With this new ethics opinion, the path is somewhat clearer. As much as the departing firm may want to keep clients, the obligation is clear that clients have the right to know where their former lawyer went. Emailed or mailed documents that were inadvertently sent to the firm as opposed to the departing lawyer at least require the former firm to notify the departing lawyer. The better practice would be to send them to the departing lawyer. As noted, the client should be given the departing lawyer’s address and phone number.
Every lawyer has to remember that practicing law is a long game. Former adversaries are future friends. There is nothing wrong with treating a departing lawyer with courtesy, even though there is perhaps some anger at the departure. This makes for better relationships in the long term and also will reduce the hostility level, which will then contribute to resolving the differences between the former firm and the departing lawyer. Professionalism still has some benefits.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.