One of my duties as president of the Jacksonville Bar Association is to write an article each month to be included in the Bar Bulletin.
Usually, my goal is to inspire – or at least slightly entertain – the readers.
That may prove to be difficult in all 12 articles during the coming year.
So, please bear with me this month as I do my best Andy Rooney impersonation and pontificate by sharing with you frustrations that have occurred in my practice recently.
Before allowing myself to vent in writing this article, I want to recognize that the vast majority of attorneys involved in litigation do things the right way and do not take advantage of the system. However, I admit to mounting frustration with those that ignore the mandate that “a lawyer may not use means that have no substantial purpose other than to [] delay” (R. Regul. FL. Bar 4-4.4(a)), and our duties to “maintain the respect due to courts of justice” and to “pledge fairness, integrity and civility” to adverse parties and their counsel, as we all swore to do when taking the oath as an attorney of The Florida Bar.
I have noticed that the majority of the type of behavior described in this article has been from attorneys located outside the 4th Judicial Circuit, if not the state altogether.
That said, in light of some recent experiences, I decided to use this article to share some tactics that do not comport with the professionalism that we all should expect from each other, and some thoughts on the same.
Mentors ingrained in me early in my career that most extensions of time are not a client decision and we should be accommodating to the professional and personal needs of opposing counsel.
It seemingly has become a regular practice for defendants to file a motion for extension of time to respond to a complaint at the 11th hour, more often than not seeking an indefinite extension.
Of course, this practice is particularly frustrating to someone trying to play by the rules when such a motion is filed without even the courtesy of a phone call to request a reasonable extension (which would have been granted).
The goal of such filings (at least in state court) is clear. Upon the filing of a paper with a court, a clerk cannot enter a default and the defendant can avoid having to respond until the plaintiff pushes the court to force a response, which unfortunately can take months in certain courts.
At some point, lawyers may need to refer a case out if they honestly are not available for any of the dozen hearing dates over the span of two months provided by a judicial assistant.
This is not only a matter of respect for the court’s and opposing counsel’s time, but moreover, of an attorney’s ethical obligations to the client.
The Florida Bar’s Professionalism Expectations explain that “a lawyer should not enter into a lawyer-client relationship when the lawyer cannot provide competent and diligent service to the client throughout the course of the representation.”
Related to this, some attorneys attempt to state they need more time for basic hearings than is necessary or reasonable, so as to take advantage of the scarcity of hearing times on a court’s busy calendar.
These tactics can delay matters by months and are in disharmony with the Florida Bar’s Professionalism Expectations’ admonition that “[r]especting the time and commitments of others is essential to the efficient and fair resolution of legal matters.”
With some lawyers, their position seems to be that obtaining a ruling is just the beginning of the argument. Again, the Professionalism Expectations are instructive: a lawyer “must … ensure that the [proposed] order fairly and adequately represents the court’s ruling,” and “should not use the post-hearing submission of proposed orders as an opportunity to argue or reargue a matter’s merits.”
If we are submitting competing orders at every step of a lawsuit, and yours are never entered, perhaps you need to listen more clearly to the judge’s rulings and directives.
I could keep going, but you hopefully get the point. Unfortunately, state court judges are busy and a lawyer can take advantage of the system to delay progress of a matter toward ultimate resolution. These tactics are not fair to fellow lawyers and, more importantly, cause our clients to lose faith in the system. If we do not set an example to follow the rules, litigate fairly and openly and be honest with each other, we cannot expect our clients to do the same.
I promise that I will return to more positive and inspiring material next month. But I am tired because school just started and my kid no longer wants to wear clothes in the morning, so I am grumpy.
I also promise to withhold my feelings about improper etiquette in airports and grocery stores for when I am a JBA past president.
In the meantime, thank you for letting me vent.
Christian George is managing partner in Akerman’s Jacksonville office.