Ethics & Professionalism: Professional Courtesy v. Zealous Representation

*This article previously appeared in the July/August/September 2013 issue of Commercial Law World, the official publication of the Commercial Law League of America.

By: Robert S. Bernstein, Esq.

It happens to all of us during our careers. We are acting on behalf of a client, either with explicit direction or with intent to represent the client “zealously.” We have the opportunity to {insert metaphor, e.g. “put our foot on the debtor’s throat” or “grab the defendant by the throat”) and we get a call from a lawyer asking for an extension. What do we do? What can we do? What should we do?

Rule 1.2 of the Model Rules (of Professional Conduct) tells us that “…a lawyer shall abide by a client’s decision concerning the objectives of representation…” Rule 1.3 says that “a lawyer shall act with reasonable diligence and promptness in representing a client.” Comment [1] to Rule 1.3 addresses this issue in general terms. “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy…” “A lawyer is not bound, however, to press for every advantage that might be realized by a client.”

Suppose you served a lawsuit and have the ability to enter a default on the twenty-first day after service. Your assistant is online about to hit “submit” on the electronic filing system and you get a call from a lawyer indicating that she is now representing the defendant and asking for an extension of time to respond. If you delay to ask the client, she gets her extension anyway. Whether you agree or not probably depends on the answers to questions like: How easily will she get the default set aside if you enter it anyway? Have you faced this issue with the client before and do they generally agree with your suggestions in cases like this? Has the defendant had a previous lawyer in the case? Is there is history of dilatory tactics by the defendant? Is the lawyer talking about using the time to explore a resolution? Can you get some agreement to limit the type of Response filed by the defendant? How will the client be adversely affected by either decision? How will you be adversely affected (in this or another case) by the decision?

For experienced lawyers, the answers may be second-nature. For all of us, it is important to go through the thought-process to make sure we understand what goes into the decision. In any particular case, the answers may be different. While each office or lawyer may have a general policy in these matters, we lawyers, as professionals, must know why we are making the decision and be prepared to support it as “reasonable diligence and promptness.”

Many courts publish codes of civility or similar documents and support extension of reasonable professional courtesy. Unfortunately, when such an extension is later claimed to be an unreasonable infringement on the “client’s decisions concerning the objectives of representation,” the lawyer may be arguing the code of civility as justification for the courtesy. How that comes out will vary with the facts and the court.

Please comment or suggest issues and topics: rbernstein@bernsteinlaw.com. See you next time.

Robert S. Bernstein, of Pennsylvania, is a Past President of the CLLA, Past Chair of the American Board of Certification and regularly tries to pay attention to issues of ethics and professionalism in the worlds of credit, collections and bankruptcy, while practicing law at Bernstein-Burkley, P.C. – www.bernsteinlaw.com.

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