State Bar of Arizona Ethics Opinions
90-16: Expediting Litigation; Candor Toward Tribunal
Delaying approval of proposed written form of judgment in light of another pending case, the ruling of which could justify re-consideration or reversal of court's decision in instant case.
The inquiring attorney represents a defendant in a civil action. The court has rendered its decision for the plaintiff and has directed plaintiff's attorney to prepare a form of judgment and submit it to defendant's attorney for approval as to form. Plaintiff's attorney has done so by a form of judgment which defendant's attorney acknowledges complies fully with the court's decision.
Defendant's attorney is aware of another pending case in which the ruling on appeal, when rendered, could justify reconsideration or reversal of the court's decision in this case. Defendant and his attorney understand that, once judgment is entered in this case, the times begin to run on a motion for new trial and on an appeal. Defendant would like to avoid having to pay fees to move for a new trial or to appeal until after there is a ruling on the appeal in the other case, and he has instructed the inquiring attorney to delay entry of judgment.
1. May defendant's attorney ethically decline to approve the proposed judgment as to form so that judgment could be entered at once?
2. May defendant's attorney ethically object to the form of the proposed judgment?
ETHICAL RULES CITED
ER 3.2. Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. 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.
ER 3.3. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
The answer to the first question is "yes," for essentially two reasons. The first is based on ER 3.2 The rule directs a lawyer to make "reasonable efforts to expedite litigation consistent with the interests of the client." Here, the interests of the client appear to justify the attorney's declining to approve the proposed judgment as to form so that judgment could be entered at once. Rule 58(a), 16 A.R.S. Rules of Civil Procedure, provides a means for the plaintiff to pursue his judgment despite the inaction of defendant's attorney. Even the Comment to ER 3.2, which seems to expand the rule as to delay, proscribes delay which is "merely" for the purpose of frustrating the plaintiff, and appears to approve delay for "some substantial purpose other than delay."
The second reason is that the committee does not believe that a lawyer commits an ethical violation if he takes advantage of time limits provided for in the Rules. A defendant may withhold answering a complaint for 20 days, and a party may withhold responding to discovery for the period of time prescribed in the Rules. In our view, such "withholding" does not become proscribed "delay" even if the party were ready to answer the complaint or reply to the discovery prior to expiration of the prescribed time limits. Likewise, we do not believe that an attorney is obligated to take affirmative steps to shorten the time within which relief may be awarded against his client.
We differentiate the first question from the second which we answer "no" because, as the facts submitted to us are stated, the judgment is proper as to form, and any objection on that ground would constitute a violation of ER 3.3(a)(1) and might constitute a violation of Rule 11(a), 16 A.R.S. Rules of Civil Procedure, this being a question of law outside our jurisdiction.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1990