9.04. Diligence [Rule 1.3]

Abraham Lincoln, in his Notes for a Law Lecture (1850), stated:  “The leading rule for the lawyer, as for the man of every other calling, is diligence.  Leave nothing for tomorrow which can be done today.  Never let your correspondence fall behind.  Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.”[1]  The current ethical obligation to be diligent is set out in Rule 1.3: “A lawyer shall act with reasonable diligence and promptness in representing a client.”  Implicit in this is the obligation that lawyers only take on cases that can be handled in a timely manner.  There are a number of reasons that a lawyer may not be diligent in pursuing a case, and the amount of lack of diligence is variable as well.    The harm to the client could be significant.  If a lawyer’s delay results in missing a statute of limitations, the client’s claim could be dismissed.  On the other hand, the delay may simply result in inconvenience to the client.  The Comments to Rule 1.3 make it clear, however, that it is the delay itself is the misconduct – “unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness” – it does not matter if the client’s interests are actually harmed.

Of course the obligation to “be diligent” has different meanings depending on the nature of the representation.  Here is some guidance to assist in evaluating what diligence requires.  First, if there is a lengthy delay in pursuing a matter, the burden is on the lawyer to explain why the delay was necessary.  Second, if a matter requires urgent attention (either when the client comes to the lawyer or if urgency develops in the course of representation), diligence requires the lawyer to immediately address the urgency.  Third, if a matter is complex or novel, a lawyer may take more time to address it than run-of-the-mill claims.  Fourth, the more a delay harms a client, the greater the obligation to act diligently.[2] 

A client will always believe their claim is the most important case a lawyer has.  That means that they may expect the lawyer to dedicate all of her resources to quickly resolving that client’s matter.  Clients are often disillusioned by how long cases take even in the best circumstances, and disillusioned clients file bar complaints.  A lawyer should, from the very beginning of the representation, begin to control client expectations.  Be honest about how long the process is likely to take and have a consistent method in place of providing periodic updates to clients, even if nothing is going on in the case.   

A violation of the diligence obligation is almost always accompanied by breach of other ethical obligations.  To use the example from above, a lawyer may miss the statute of limitations on a claim because he does not know what the statute is (a vioilation of the obligation of competence).  Once the lawyer realizes that the statute of limitations has passed, he might be hesitant to tell the client – and therefore may violate the obliation to communicate with the client.    

[1] See http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm.

[2] Peck & Coffey, “Unhappy Clients May Lodge Complaints of Neglect Even When Malpractice is Not an Issue,” New York State Bar Journal (May/June 1999).