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RŌNIN REPORTS: Giving Diligence Its Due

Benjamin K. Sanchez

Whenever lawyers hear the word “diligence,” most automatically think about the research that is done prior to entering a business transaction, especially a merger or acquisition. How many of us are aware, however, that diligence in our profession is an ethical mandate that far exceeds pre-transaction research? In fact, diligence is the third rule in the ABA Model Rules of Professional Conduct: "Rule 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client."

Quite frankly, while many of us know the basic meaning of promptness, few of us will agree on what diligence means, let alone reasonable diligence. I encourage you to take a few minutes to join me in giving diligence its due.

Push Forward Despite Pushback

Comment 1 to Rule 1.3 is very telling in defining diligence. First, “[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer.” Too many lawyers these days take the easy way out and withdraw from a case or terminate a client when the case becomes inconvenient or the client becomes the slightest bit ornery. Yet, the Model Rules contemplate that the road will not always be easy for the attorney, and the attorney should know that before starting on it.

Just because most solo and small firm attorneys have a choice in their clientele doesn’t mean that the choice to stop pursing a matter is simple. As a professional whose very job is to fight for your clients, you must not allow pushback to be a deterrent. The legal world is not so easy, and the public trust in our profession is predicated on the very idea that we will do what is right even when it is hard. Most of us understand that we will encounter opposition and even obstruction in our endeavors to represent our clients, but too many of us are unwilling to endure personal inconvenience in those endeavors. I have seen too many lawyers not just complain about their cases and clients but actually withdraw in the face of difficulty. Isn’t that what your client hired you for, to be the one to engage the difficulties when the client is unable? Didn’t you agree to engage in such battles knowing that there would be opposition, obstruction, and personal inconvenience?

While our profession benefits from all sorts of personalities in order to handle the diverse personalities that we encounter, one character trait we must have and exhibit is courage. Without courage, we will crumble in the wind and wither in the storm. Our clients give us their trust in reliance on our courage to do what they cannot. Though courage has its ethical boundaries, such boundaries are not an excuse to be without it. You will face problems in your career; our profession is built on tackling problems. Do not be so faint of heart to let a little difficulty deter you in your representation of clients.

Vindicate a Client Within Reason

Why must we pursue the client’s matter despite difficulty? Comment 1 to Rule 1.3 mandates that a lawyer should “take whatever lawful and ethical measures are required to vindicate a client’s case or endeavor.” When you take on a client’s case or endeavor in the beginning, you acknowledge that you will persevere despite the difficulty and do what is lawful and ethical in furtherance of the client’s case. Notice that Rule 1.3 doesn’t require doing whatever is necessary. Our commitment to our client’s cause is not boundless. There are ethical limits to our representation, and thus the idea of what “reasonable” means in reasonable diligence.

We are not expected to “press for every advantage that might be realized for a client.” We “may have authority to exercise professional discretion in determining the means by which a matter should be pursued,” such that our “duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Thus, diligence is not only how we act for our clients but also how we act within our profession. Reason itself has a moral compass, and diligence must include that moral direction.

Maintain Control for Competence

Comment 2 to Rule 1.3 states that “[a] lawyer’s work load must be controlled so that each matter can be handled competently.” The law practice management industry is built almost entirely on the notion of controlling our work load, from intake to file destruction years after a matter has been closed.

Years ago, before the technological revolution and the rise of computers, attorneys worked by hand and legal resources were few. There was only so much time a lawyer had to work on client matters, and the amount of matters a lawyer could handle at any one time was very limited. We now live in an age where quantity and size seem to matter more than quality. Computers, legal resources, laws, and clients in some respects are virtually unlimited. We are pressured to do more because we have more. Clients, courts, and colleagues demand more work be done at a faster pace because that is what we are used to in today’s world. Instant news has pushed investigative news aside. Instant gratification is valued more than enduring the journey. As attorneys, we flood the courthouses with motions at every whim and in turn must respond to everyone else’s motions. We have little time to see the forest because we are mired in the trees.

Controlling our work load is done in many ways. From the number of matters we take on to how we handle these matters daily, our work must be thoughtful and measured. Many times, our personal finances force us to take on more clients than we should because we are looking for more money to pay our expenses and luxuries. We get in over our heads and can’t focus on any one matter too long, or even at all. We don’t invest in proper technology to help us manage our load. With our ever-increasing dockets, it’s almost negligent not to have practice management systems in place. Gone are the days that we can simply remember everything in our heads. How many times have we heard of or given the excuse that something wasn’t on our calendar? It’s not that we don’t have calendars, but rather we either don’t have a system in place to move the date from our head or notes into our calendar or get so distracted and busy that we fail to use the system. Systems don’t work without input; thus, we must be ever vigilant in ensuring information is put into our practice management systems so that such systems work properly and increase our diligence.

Procrastination: A Lawyer’s Enemy

In one of my columns, I wrote about procrastination, including why it’s a problem and how to attack it. I and many other lawyers suffer from this dreaded condition. If you are a procrastinator, too, don’t be discouraged, because you are not alone. Comment 3 to Rule 1.3 discusses procrastination, calling it the most widely resented shortcoming we have in our profession. As the Comment notes, “[a] client’s interests often can be adversely affected by the passage of time or the change of conditions” or even destroyed when a statute of limitations is overlooked. Even when such dire consequences are not the result of our delay, “unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.” While promptness is not necessarily diligence, the two must go hand in hand. When we are not diligent, we are subject to delay and downright oversight altogether. When we are handling our work load in a competent manner, we are more likely to be timely and productive. There is no way to manage time, but you can manage yourself more effectively so that you can use time more wisely.

Honor Commitments

When each of us became a lawyer, we made a commitment to honor the public trust bestowed on us. When we hold ourselves out as lawyers and invite clients to place their ultimate trust in us, we promise to be diligent in all matters. Our own ethical rules mandate such, and to ignore that promise is to do a disservice to our clients, our profession, and ourselves. As Comment 1 to Rule 1.3 states, we “must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” We must do so in a timely and competent manner despite opposition, obstruction, and personal inconvenience.

Be Diligent About Becoming Diligent

My homework assignment for you is to take one Saturday, when the phones aren’t ringing and you aren’t disturbed by client meetings, court hearings, and other distractions, simply to review your cases briefly, determine their current statuses and next steps, and then think about how you can work more effectively and efficiently to become a more diligent lawyer for your clients. I encourage you from then on to take time to touch each case every month, keeping up with the status and determining next steps. A diligent lawyer has happy clients!

Benjamin K. Sanchez

Benjamin K. Sanchez is a commercial and collection litigation attorney and JMT-certified coach, trainer, and speaker in Houston, Texas.