AUGUST 2006

PRACTICE TIPS FROM BAR COUNSEL

RPC 1.3 (Diligence)

(PRACTICE TIPS FROM BAR COUNSEL)

Taking the Case Also Means Doing the Work

BY PHIL PATTEE, ASSISTANT BAR COUNSEL, STATE BAR OF NEVADA

When people are paid to do something, they are expected to do it.  When paid, the grocer is supposed to hand over the food.  He’s not supposed to keep the groceries and make his customer leave empty-handed.

The same is true in the legal community.  This may seem to be a silly statement, but lawyers are supposed to do whatever they were hired to do.  You can’t accept money or anything of value from a client and then do nothing.  In fact, even if working pro bono, the legal work must be done.

Many ethical grievances against attorneys come from clients who claim that they hired a lawyer who then did nothing on their case.  Usually the claims are unfounded.  But some, unfortunately, are absolutely true.  The attorney did no work, often with disastrous results.

With text of only 13 words, Rule of Professional Conduct 1.3 (Diligence), formerly Supreme Court Rule 153, is the shortest of Nevada’s ethical rules.  It requires that, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Translation: Do the work, and do it with reasonable promptness.

For many attorneys, the diligence problem arises because of a heavy caseload.  Financial considerations compel them to accept too many cases.  Soon, files get set aside in favor of more urgent matters and the attorney is only handling the emergencies of that day. 

For the overwhelmed attorney, it’s like standing on the beach and trying to hold back the sea with a broom.  He can never catch up, but still takes on more clients to pay the bills.  His law practice usually collapses because of missed deadlines and irreparably damaged cases.  The phrase “Statute of Limitations” is commonly heard in a negative way.

Adding staff to solve the caseload problem, although probably necessary, often isn’t easy.  It’s the chicken/egg problem.  Which comes first, the staff or the money to pay the staff?  How do you hire staff without the cases, and therefore the funds, to pay salaries?  It’s an age-old dilemma.

Unfortunately, diligence problems sometimes stem from all-too-familiar causes.  More and more, attorneys in the disciplinary process are there because of substance abuse or gambling problems.  Other attorneys also are disabled by medical or emotional issues.  Too often, the law practice unraveled because the attorney suffered from severe depression and didn’t seek treatment.

So, take some time to look at what’s on your desk or in your office.  If deadlines seem to be sneaking up, consider whether you have too many matters or need better case management.  Computer programs are getting better and better at tracking cases and reminding us when important dates are approaching.

If you believe that personal problems are impacting your practice, have the courage to address your problems before it’s too late.  Lawyers Concerned for Lawyers, a confidential State Bar program, helps attorneys with substance abuse problems.  The Office of Bar Counsel also assists attorneys who reach out for help.

The burden of following the Rules of Professional Conduct, of course, falls upon the attorney.  As a condition of practicing law, we must abide by all ethical guidelines, including requirements regarding diligence.

To be diligent, or not to be diligent, must never be the question.