Need a continuance? Don’t assume it’ll be granted.

I’ll cut to the chase.  The goal of this post is to remind lawyers not to assume that a continuance will be granted. In a few paragraphs, I’ll share a cautionary tale that drives home the point. But first, a bit on what got me thinking about the general topic.

I’ve been contemplating a post on the relationship between Rule 3.2 and Comment 5 to Rule 1.2.

The former requires a lawyer to expedite litigation consistent with the interests of the client.  The comment makes clear that delay for delay’s sake is unethical. 

  • “Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

Meanwhile, Comment [5] to Rule 1.2 addresses a lawyer’s professional responsibility upon receiving a good faith request for a continuance.  The comment went into effect on November 14 and is part of the rule that answers the question “Who decides? The client or the lawyer?”  It reads:

  • “[5] It is not inconsistent with the lawyer’s duty to seek the lawful objectives of a client through reasonably available means for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, to avoid the use of offensive or dilatory tactics, or to treat opposing counsel or an opposing party with civility.”

In a way, each is intertwined with Rule 1.3’s duty to act with reasonable promptness and diligence when representing a client.

Looking for cases or opinions that discuss either rule, I came across the ABA Journal’s post Lawyer who missed deadline to watch son’s professional debut gets no sympathy on appeal. The story reminded me of (what I think is) a common assumption: that a continuance will be granted. Here’s what happened.

Lawyer filed a civil suit on behalf of Plaintiff.  Defendants moved to dismiss. The United States District Court for the Central District of California set a hearing on the motion for June 24, 2021.

On June 9, 2021, Lawyer filed a motion to continue the hearing. Lawyer cited his workload as well as the fact that his associate would be out of the office for several weeks for a family emergency. The court granted the request. As such, the deadline for Lawyer to file a response to Defendants’ motion to dismiss was pushed to September 3, 2021, and a hearing on the motion was scheduled for September 24, 2021.

On September 3, the date that his response was due, Lawyer filed another request for a continuance.  This time, Lawyer asserted that he could not file a timely response because he was in Illinois to watch his son’s debut as a professional baseball player.  Lawyer asked that the hearing on Defendants’ motion be pushed to October 8.  The court denied Lawyer’s motion.

On September 18, Lawyer filed a response to the motion to dismiss. It seems that Lawyer expected to appear at a hearing on the motion to dismiss on September 24.

The hearing never took place.  Rather, on September 20, the court granted Defendants’ motion to dismiss as unopposed. In so doing, the court concluded that Lawyer’s responsive motion was filed out of time.  Plaintiff’s suit was dismissed, and the hearing scheduled for September 24 cancelled.  The court’s order is here.

Lawyer appealed.  Last week, the 9th Circuit Court of Appeals affirmed the district court’s decision.  Among other things, the 9th Circuit stated that Lawyer’s

  • “. . . excuse for not meeting a deadline that had already been extended 90 days at his request was frivolous: Counsel chose to attend a ballgame instead of timely filing his client’s response to the motion to dismiss.”

The ABA Journal quoted Lawyer as stating:

  • “Look, I’ve been doing this for 38 years. Most judges would give you a pass to see your kid’s first professional baseball game.”

In addition to the ABA Journal, How Appealing reported the story here and updated it here.

I do not know what Lawyer’s mindset was. Nor am I suggesting that he assumed a continuance would be granted.

Rather, as I indicated above, the story reminds me of what I perceive to be a common feeling in the Vermont bar: that continuances will be granted. This story shows that’s not always the case.

Today’s lessons:

  • Lawyers shouldn’t assume they’ll receive continuances.
  • Comment [5] to Rule 1.2 vests a lawyer with the authority to agree to good faith requests from opposing counsel that do not harm the lawyer’s client’s interests.
  • Rule 3.2 makes clear that delay for delay’s sake is unethical.

As always, let’s be careful out there.

2 thoughts on “Need a continuance? Don’t assume it’ll be granted.

  1. Sort of an “amusing” set of circumstances but no mention of the fact that it is the client who bears the brunt of the court’s dismissal. It seems to me that there were other sanctions available to the Court that could have been directed against the lawyer that would not have punished the client for his lawyer’s lack of professionalism. Does not sound like a just result, which is what the Court’s concern should have been. So the client is left with a malpractice lawsuit? Thanks for nothing. Teach the lawyer to take the rules seriously some other way, me thinks.

    Liked by 1 person

  2. I think Mark Berman has a point.
    Yes, the court should have found a way to sanction the lawyer. But here, both client and lawyer lose.
    It’s possible that the client could bring a malpractice claim against the lawyer. But that’s not certain: Can the client afford to hire a new lawyer? Is underlying case strong enough, and are the damages large enough so that the client can find a new lawyer on a contingency, if necessary? Can the client afford to pay the expert witness who will now be required to testify against the old lawyer? Does the old lawyer have malpractice insurance, or the assets required to pay the judgment?
    Will a new judge find the lawyer’s excuse adequate? Or will a juror or two or three decide that the baseball game excuse is strong enough?
    It seems as though the client can probably overcome these obstacles. But should the client have to do that? And will the client be made whole by a successful malpractice case?
    I don’t think the client should bear all these problems just because the client chose the lawyer.

    Liked by 1 person

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