Legal ethics

This “No extensions” Policy Won’t Last Long

Let’s talk about this week’s big legal news. No, not that. No, also not that. Okay, in the interest of accuracy, I should say let’s talk about something that was big legal news this week within some circles and has an easy hook into discussing attorney ethics rules.

Yes, you’ve now guessed it – the announcement (though it was more a leak of an internal email memo) that Morgan and Morgan will not be letting its lawyers grant any extensions or courtesies to insurance defense lawyers as a reaction to the latest tort reform initiative down in Florida.

I have written specifically about Morgan and Morgan in the past. I’ve also made pretty clear that I’m not a fan of lots of stuff coming out of Florida so I think I’m on pretty safe grounds presenting myself as objective about this latest development.

Here if you haven’t seen it is the screenshot of the internal email that Above the Law first publicized.

The reaction within the defense bar, at least online in places like Twitter, was pretty heated. In addition to folks decrying this as contrary to tenets of civility and professionalism, some folks started tossing around assertions that this kind of policy was inherently unethical.

Now, before I offer my thoughts on why the only folks that I think would have a good argument for an ethics violation would be associates at Morgan and Morgan against principals in the firm, let me make clear: I think this is not a smart policy. If it isn’t dropped before it starts, it will make many, many judges upset when they have to adjudicate motions for routine extensions. It also might lead to an influx of new clients for a while who think they want this kind of hard-nosed lawyering, but it will likely come back to bite a few clients when they find themselves in need of additional time and salty defense lawyers end up declining to grant a courtesy if only on a “tit for tat” basis.

Also, in any jurisdiction where some sort of “guidelines” involving civility or professionalism or courtesy are adopted by reference as part of ethical rules for a particular court, then the ethical analysis is entirely different from what I offer below.

But, with all of that prologue, under the normal Model Rules, would a firmwide policy prohibiting lawyers from agreeing to extension requests from opposing counsel be unethical?

No, not as long as the firm’s client is okay with it. Why? Well, in hopefully 500 words or less, here’s why:

When you talk about the role of lawyers in agreeing to things that delay litigation, most of the ethics rules are drafted with an eye towards trying to address whether lawyers have any latitude to be courteous and agree to extensions over any objections of their own clients. Not surprisingly, none of those rules are violated when a lawyer refuses to agree to proposed delays.

Model Rule 3.2 for example actually makes it the ethical duty of lawyers to “make reasonable efforts to expedite litigation.” Model Rule 1.3 requires lawyers to “act with reasonable diligence and promptness in representing a client.” Comment [3] to that rule makes the affirmative case that a lawyer certainly can agree to a request for additional time: “A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for postponement that will not prejudice the lawyer’s client.” That language though doesn’t address its converse at all. Model Rule 1.2(a) attempts to establish broad principles for the parameters of who gets to decide what as between attorney and client by stating that the “lawyer shall abide by a client’s decisions concerning the objectives of representation” but as to the “means by which [the client’s objectives] are to be pursued” only has to “consult” with the client in compliance with Model Rule 1.4. That being said, it would be potentially dangerous for a firm to disregard a client’s request to deviate from this kind of policy by trying to argue that this is merely a “means” question and not something that the client might say jeopardizes the “objectives.” But, if as stated above, the client is okay with the policy then there is no Rule 1.2(a) problem.

That leaves us with Model Rule 4.4(a). This rule “might” be the one that an opposing party or counsel could seize upon for arguing that implementation of this policy would be unethical. That rule prohibits a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden a third person.” The argument being that refusing all extension requests based on a blanket policy certainly would “burden” opposing counsel and the opposing party. But whether that amounts to a violation of Model Rule 4.4(a) turns a bit on the answer to the question: “Is trying to combat the kind of legislation that was passed in Florida, either by trying to stop other states from doing it or to perhaps convince Florida to walk it back a substantial purpose?”

While you ponder that, plan to come back on Tuesday (when I understand nothing else of import in the world will be happening) for part 2 when we delve into my thinking about why the person with the most likely viable disciplinary complaint over this policy is the person least likely to file a complaint — some associate of Morgan and Morgan in one of its offices somewhere.

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