So, I know I promised part two of this two-part blog epic would come out today, but things have come up and so I’m going to have to ask you for a little patience and an extension of a few days to deliver.
I’m just joking, of course. I know that you won’t be granting any extensions. Today, we are completing the thought raised last week. If you somehow are here for this, but not here for Friday’s part 1, it probably makes sense to read that first.
But picking up on the thread left undiscussed, I wanted to elaborate on my thoughts as to why the person with the best argument that the “no extensions” policy adopted by M&M was unethical is the person least likely to ever file an ethics complaint about it — an associate at the firm who thinks that denying a requested extension is wrong in a particular case but has a partner or member of management insist on compliance.
Unlike opposing counsel, a lawyer within the firm attempting to live under this policy will at all times have to live with two ethics rules that can create real problems. The first is one that is rarely talked about: Model Rule 2.1. The first sentence of that rule reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”
The duty to exercise independent professional judgment means that every time a situation comes up in which the lawyer is being asked by the other side for the extension of a deadline that the lawyer is supposed to use their own independent professional judgment, in consultation with the client, about what should be done. Slavishly applying the firm policy as the basis for action would always run the risk of technically violating Model Rule 2.1, but firms have lots of less publicized and less controversial policies that also arguably encroach on the independent professional judgment of lawyer employees.
The other rule that can create a real problem is either Model Rule 5.1 or Model Rule 5.2 depending on whether the lawyer in question is playing the part of a supervisory or subordinate lawyer. Sticking with our scenario where an associate is unhappy about the idea that the firm’s policy demands denial of a requested extension even if the associate’s independent professional judgment would tell him the better path is to grant the extension.
In that situation, an associate struggling with the ethics of what is required of them might consult with whoever is their supervising lawyer. If that supervising lawyer tells them that they can abide by the firm’s policy and not violate their ethical obligations, then the question of whether or not the associate could get in trouble for following those instructions would turn on whether there is any “arguable question of professional duty” and whether follow the firm’s blanket policy would be a “reasonable resolution” of that arguable question.
While it might be the case in some scenarios, it isn’t that difficult to spin out a scenario where the question of what was required is not at all arguable. Thus, following the instruction if given, would in no way inoculate the associate from being held responsible for their own ethical misconduct in failing to exercise independent professional judgment.
Now, of course, almost all of the above is largely academic because (a) one would hope the first time this comes up in reality that the firm will reexamine the situation and refine its stance to let their lawyers practice law as appropriate to each situation; and (b) even if they do not, lawyers who are not fans of the policy will more likely find other pastures rather than ever go down a path of filing a grievance against the powers-that-be in their own firm.
Ironically, I think that the powers-that-be at M&M would be able to understand immediately that an insurance company could not demand through counsel guidelines that the lawyers it hires must refuse all extensions to opposing counsel because Model Rule 1.8 and 5.4 make certain that a lawyer can only accept payment of fees from someone other than their client if that third-party does not interfere with the lawyer’s independent professional judgment.
How long it will take them to figure out that the impact of Model Rule 2.1 is analogous with respect to their policy is anyone’s guess.