Duties to tribunal and opposing party - Expediting litigatio...

Learning Outcomes

After reading this article, you will be able to explain a lawyer’s duty to expedite litigation, identify what constitutes improper delay, and distinguish permissible from impermissible postponements. You will also understand how this duty interacts with client interests and recognize common MPRE pitfalls involving delay tactics or routine extensions.

MPRE Syllabus

For the MPRE, you are required to understand the ethical obligations lawyers owe to tribunals and opposing parties regarding the progress of litigation. This article focuses on:

• The duty to expedite litigation consistent with client interests.
• Prohibited conduct involving delay, including improper postponements and abuse of procedural rules.
• The standard for determining when delay is justified.
• The lawyer’s responsibility to balance client objectives with the obligation to avoid unnecessary delay.
• The consequences of violating the duty to expedite litigation, including discipline and possible litigation sanctions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes a lawyer’s duty to expedite litigation?
   1. Lawyers must always act as quickly as possible, regardless of client interests.
   2. Lawyers must make reasonable efforts to expedite litigation consistent with the interests of the client.
   3. Lawyers may delay proceedings for any reason if the client consents.
   4. Lawyers may routinely agree to postponements for their own convenience.
2. A lawyer agrees to a two-month postponement of trial solely to accommodate her vacation schedule, with no prejudice to the client. Is this:
   1. Always proper
   2. Always improper
   3. Proper only if the client consents in writing
   4. Improper if done routinely for the lawyer’s convenience
3. Which of the following is most likely to subject a lawyer to discipline?
   1. Agreeing to a short extension that does not prejudice the client
   2. Delaying litigation to frustrate an opposing party’s attempt to obtain rightful redress
   3. Seeking a postponement for a client’s medical emergency
   4. Requesting additional time to prepare a complex case

Introduction

A lawyer’s duty to the tribunal and opposing party includes an obligation to make reasonable efforts to expedite litigation. This duty is not absolute; it is balanced against the legitimate interests of the client. However, lawyers may not use procedural tactics or delays for improper purposes, such as personal convenience, harassment, or to gain unfair advantage. Violations can result in professional discipline or litigation sanctions.

Key Term: Duty to Expedite Litigation
The ethical obligation requiring lawyers to make reasonable efforts to move litigation forward promptly, consistent with the interests of the client.

The Standard: Reasonable Efforts Consistent with Client Interests

Lawyers must act with reasonable diligence and promptness. The Model Rules require that you make reasonable efforts to expedite litigation, but only to the extent consistent with the interests of your client. This means you should not delay proceedings for personal reasons or to inconvenience others, but you may seek postponements when necessary for legitimate client needs.

Key Term: Improper Delay
Any delay in litigation that serves no substantial purpose other than to inconvenience, harass, or gain unfair advantage, or is done solely for the lawyer’s or client’s personal benefit without a legitimate legal reason.

Permissible vs. Impermissible Delay

Not all delays are unethical. Some postponements are justified, such as those needed for adequate preparation, to accommodate a client’s emergency, or to allow time for settlement discussions that benefit the client. However, routinely seeking extensions for the lawyer’s convenience, or to frustrate the opposing party, is not permitted.

Examples of Proper Delay

• Requesting more time to prepare a complex case.
• Agreeing to a short extension that does not prejudice the client.
• Postponing a hearing due to a client’s illness or emergency.

Examples of Improper Delay

• Delaying proceedings solely for personal convenience (e.g., vacation).
• Routinely seeking postponements without a substantial purpose.
• Using delay tactics to pressure the opposing party or to force settlement.

Balancing Client Interests and the Duty to Expedite

While you must act in your client’s best interests, you cannot use this as a justification for unnecessary delay. The test is whether a competent lawyer acting in good faith would regard the course of action as having a substantial purpose other than delay. If not, the conduct is improper.

Key Term: Substantial Purpose
A legitimate, non-delay-related reason for an action in litigation, such as protecting a client’s rights, ensuring fairness, or complying with procedural requirements.

Worked Example 1.1

A lawyer is representing a plaintiff in a civil case. The opposing counsel requests a two-week extension to respond to discovery due to a family emergency. Granting the extension will not prejudice the client’s case. The client instructs the lawyer to refuse any extensions, wanting to “make things as hard as possible” for the other side. Should the lawyer grant the extension?

Answer:
Yes. The lawyer may grant reasonable extensions that do not prejudice the client, even over the client’s objection. The duty to expedite litigation and maintain professional courtesy allows for such accommodations unless the client’s rights would be harmed.

Worked Example 1.2

A lawyer routinely requests trial postponements to avoid scheduling conflicts with personal travel, even when the client’s interests are not affected. Is this conduct proper?

Answer:
No. While occasional postponements for personal reasons may be acceptable, routinely delaying litigation for the lawyer’s convenience, without a substantial purpose, violates the duty to expedite litigation and may subject the lawyer to discipline.

Exam Warning

Repeated or routine delays for personal convenience, or to frustrate the opposing party, are common MPRE traps. Even if the client is not directly harmed, such conduct can still result in discipline.

Revision Tip

Always ask: Does this delay serve a legitimate legal purpose, or is it merely for convenience? If in doubt, err on the side of promptness.

Summary

Lawyers must make reasonable efforts to expedite litigation, consistent with client interests. Delays are only proper when justified by legitimate needs, not for personal convenience or to disadvantage others. Routine or intentional delay for improper purposes is unethical and may lead to discipline or sanctions.

Key Point Checklist

This article has covered the following key knowledge points:

• Lawyers must make reasonable efforts to expedite litigation consistent with client interests.
• Improper delay includes any action serving no substantial purpose other than to inconvenience, harass, or gain unfair advantage.
• Routine postponements for personal convenience are not permitted.
• Permissible delays include those needed for adequate preparation or legitimate client needs.
• Violations can result in discipline or litigation sanctions, even if the client is not harmed.

Key Terms and Concepts

• Duty to Expedite Litigation
• Improper Delay
• Substantial Purpose