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Dilatory tactics and lack of diligence in representation.

Lawyers often see delaying tactics as fair game and to be expected in litigation and other matters When do dilatory tactics cross the line from strategy into unethical behavior? When can a lawyer be disciplined for delay as part of trial strategy or simply as a matter of neglect? Rule 4-3.2, Florida Rules of Professional Conduct, states that, "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." The comment to the rule makes clear that delays in legal representation "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." In determining whether a particular action is a violation of Rule 4-3.2, lawyers should ask themselves whether an independent, competent lawyer, acting in good faith would see a particular course of action as having "some substantial purpose other than delay." Comment to Rule 4-3.2.

Rule 4-3.2 is often cited in discipline opinions where attorneys have filed harassing and unfounded motions and discovery documents with no purpose other than to delay a proceeding. For example, appealing a final judgment which an attorney knew was not valid and had been signed by mistake was held to be a violation of Rule 4-3.2 as well as Rule 4-3.1, which prohibits filing nonmeritorious pleadings, appeals and motions. Wood-Cohan v. The Prudential Insurance Co. of America, 715 So.2d 999 (Fla. 4th DCA 1998). Similarly, in Emerson Realty Group, Inc. v. Schanze, 572 So.2d 942 (Fla. 5th DCA 1990), the Fifth District Court of Appeal held that attorneys had violated Rule 4-3.2 when they delayed a lawsuit for months and ultimately procured dismissal of plaintiff's suit by sham pleadings. The court ordered them to pay attorneys' fees and costs incurred by plaintiff as a result of the wrongful dismissal of the plaintiff's, suit and appeal.

Rule 4-3.2 is also implicated when lawyers neglect their cases, let statutes of limitations run and allow cases to be dismissed for lack of prosecution. Such violations go hand in hand with violations of Rule 4-1.1, dealing with competence, and Rule 4-1.3, which requires attorneys to "act with reasonable diligence and promptness in representing clients." Failure to file actions, failure to follow through and expedite matters has resulted in disbarment where there is a pattern of such behavior. In The Florida Bar v. Horowitz, 697 So.2d 78 (Fla. 1997), the Florida Supreme Court disbarred an attorney for a pattern of neglect of clients' cases, including failure to file actions and failure to follow through and expedite matters. Horowitz filed a notice of appeal in one case, but then never filed a brief. He permitted one client's claim of lien to expire and failed to foreclose on other client's lien after he filed the lien. He even failed to respond to the grievances lodged against him by these clients.

This is an egregious case, but lesser violations have also resulted in disciplinary proceedings against Florida lawyers. In The Florida Bar v. Roberts, 689 So.2d 1049 (Fla. 1997), an attorney was suspended for 90 days for failing to perform a final accounting or to obtain an order of discharge by the statutory deadline for an estate he represented. He also improperly disbursed estate funds to the wrong party and then failed to take action to obtain return of the misdirected funds. Another attorney was suspended for 30 days after neglecting to obtain court approval for a settlement involving personal injuries sustained by a minor and failing to effect public sale of a property after foreclosure. The Florida Bar v. Daniel, 626 So.2d 178 (Fla. 1993). Another attorney was held to have violated Rules 4-3.2 and 4-1.3 when he failed to file a complaint in a lemon law case for two years. In another matter, the attorney agreed to obtain for clients a release from a mineral rights lien on their property. Appropriate a ction to obtain the release of lien was not taken until two years later. The attorney showed similar neglect and delay in failing to perfect a foreclosure for another case. Due to these inexcusable delays and the attorney's misrepresentations to his clients about the delays, the attorney was suspended for 45 days. The Florida Bar v. Griggs, 522 So.2d 24 (Fla. 1988).

In order to avoid such problems, attorneys must be careful to calendar all their matters to make sure that action is taken on all cases in an expeditious manner. This advice applies to both litigation and transactional matters. A delay in preparing a lease or in closing on sale of property can cause serious consequences for clients and must not be allowed to happen. Complaints should be filed as soon as the attorney has the requisite evidence to establish the claims in the complaint. Investigations should be begun immediately upon signing up a new client with a potential claim. As shown above, it is not enough just to file a complaint before the statute of limitations expires. If a file has been languishing on an attorney's desk or in his or her files for a period of months with no activity and/or no complaint filed, the attorney has violated Rules 4-3.2 and 4-1.3.

Attorneys should keep an action list of all pending matters that is reviewed at least once a month. This list should reflect the date of the last action taken in a matter. If there is any matter that has had no action for a month or more, that file should be placed at the top of the attorney's action list for telephone calls, complaint preparation, commencement of settlement negotiations (with client consent) or whatever other action may be appropriate. Defense counsel may need to move to dismiss a plaintiff's languishing case or move for summary judgment in a client's favor. In short, attorneys should do whatever they can to move their clients' cases along at all times. Failing to do so can result in costly mistakes for both lawyer and client.

Remember that attorneys are available to assist you with ethics questions through the Ethics Hotline from 9 a.m. to 5 p.m. Monday through Friday at 1-800-235-8619. This a free service for Florida Bar members. You may also conduct your own research on the Bar's website at The Bar's website contains the full text of the Rules Regulating The Florida Bar and all Florida ethics opinions, as well as a myriad of other useful information.
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Author:Bible, Kathy
Publication:Florida Bar News
Date:Feb 15, 2001
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