Published March 2012
By Michael D. Mopsick
Palm Beach County is a relatively civilized place to practice law, hopefully due in part to the rules that govern our conduct and make us aspire to civility and professionalism in our practices. The Florida Bar’s Ideals and Goals of Professionalism and Palm Beach County’s own Standards of Professional Courtesy, have been written about before in this column. Most of us know they exist; some of us may even have read them. But all of us have, at one time or another, experienced the tension between what these rules require of our conduct and what the Rules of Professional Conduct require of our duty to our clients.
These “civility” rules and The Rules of Professional Conduct often produce real-life dilemmas that we feel ill-equipped to handle. They arise in the simplest of situations, often at the outset of litigation, and the way you handle them can set the tone for your relationship with opposing counsel, and often with your client, for the rest of the case.
The obvious first example is the request for extension of time to respond to a complaint, received within the first 20 days. You know the Court will grant this request. In fact, if you refuse to consent, the very filing of a motion by your adversary will result, in practice, in a longer extension than he may have been asking for. You know that, but does your client? He hired you because his nephew, your fraternity brother, referred him to you, and you assured him that you are a tough and aggressive litigator. Is this the time to show it? Of course not. If your client does not know that this is a no-brainer for you to grant the courtesy of an extension, you have done a terrible job of managing your client’s expectations. You haven’t told him that although you are a tough litigator, you practice within the guidelines of the Standards of Professional Courtesy. Nor have you explained that you will, from time to time, grant such courtesies when doing so will not prejudice his rights and may even save him some counsel fees.
Here is another simple one. You filed and served your complaint, checked with the clerk on the 21st day, learned that nothing had been filed by the defendant, waited another week just to be sure, and then obtained a clerk’s default. You’ve informed your client and are happily drafting the motion for default judgment, when you get a call from a lawyer you know and admire (or, that you don’t know at all), saying he was consulted on the 20th day by the defendant but wasn’t retained until yesterday, and can you please agree to vacate the default so he can answer? Is this a request for simple courtesy, or are you being asked to compromise your client’s rights in the interest of civility and practicality? What would your client be giving up if you agree? Is the Judge likely to vacate the default? Is there any scenario in which she wouldn’t? What will you tell your client when he asks why you did it? Did courtesy dictate that you give away your client’s right to proceed to a default judgment? Did he even have such a right, or would the Judge, in all likelihood, have vacated the default, costing your client more in fees to defend the motion to vacate?
The line is a little fuzzier in this one, which happens every day. After you’ve entered a clerk’s default, you moved for default judgment for a liquidated sum, and judgment was entered. A week later, your good friend, your law school moot court partner, calls and says she was retained a week ago, and it looks like there is a good defense, but she was in trial, meant to call you but couldn’t get to it, and she’s still working on her motion to dismiss. She confidently asks for the courtesy of an extension of time. You, uncomfortable, explain that you already have a judgment. Shocked, she pleads with you to agree to vacate the judgment. She even tells you her “meritorious” defense, which sounds viable. Is this a request for a “courtesy”? How will you explain this request to your client? You know that the Judge could vacate the judgment based on excusable neglect and a meritorious defense, but he might not, or he might impose conditions. Would you be compromising your client’s position in order to help a friend, or are you still at the point where you are saving the client fees by cutting right to the expected result?
These are only the simplest of examples, yet there are few answers here; mostly questions. To practice with professionalism and civility requires that you determine when a grant of courtesy is a breach of your duty to your client. Managing a client’s expectations will ease your way when you try to follow the line of the “civility” rules, but knowing where that line intersects with your duty to your client is the mark of a true professional.
Michael D. Mopsick is a partner with the Boca Raton office of Buckingham, Doolittle & Burroughs. His practice is focused on litigation of trust, probate and guardianship matters and he is a Florida Supreme Court Certified Circuit Civil Mediator.