Concept
Components of Diligence
Exercising diligence and care
Components of Diligence
Rule 1.3 compresses its command into one sentence: a lawyer must act with reasonable diligence and promptness in representing a client.1 The conduct that sentence governs fills the whole representation, from the day the lawyer accepts the matter until the work is finished. A duty that long is hard to apply until it is broken into parts, because a file can go wrong at different points and for different reasons. Three questions do the breaking, and each has its own doctrine.
The first question is whether the lawyer moves at a reasonable speed. Deadlines and limitations periods set the pace there, and so does time with no deadline attached. The second is whether the lawyer pursues the client's cause with appropriate energy, an effort the rules of professional conduct and the law bound. The third is whether the lawyer finishes what the lawyer starts. A lawyer who accepts a matter takes responsibility for carrying it through, and a lawyer who drops it midway without properly ending the relationship abandons the client.
Each question can fail while the other two hold. A lawyer can keep a steady pace and still cross ethical lines in pursuit of a win. A lawyer can be energetic and scrupulous and still let the matter die before it ends. A lawyer devoted to finishing every file can still miss the one deadline that mattered. A diligence analysis therefore checks the three questions in turn, beginning with the clock.
Reasonable Promptness
Promptness asks whether the lawyer's work arrives while it can still help the client.2 Two kinds of clocks run against a lawyer. One is fixed by law and cannot be negotiated: a filing deadline or a limitations period. The other carries no date but runs all the same, because a matter left idle changes in ways that hurt the client. Rule 1.3 reaches both, and it leaves room for postponements that cost the client nothing.
The fixed clock is the least forgiving. A statute of limitations sets the last day on which a claim may be filed, and a claim filed afterward is ordinarily dismissed without anyone asking whether it was a good claim. No court or opposing party will remind the plaintiff's lawyer that the date is near, and the client usually does not know the date. The lawyer who accepted the matter is the only person positioned to watch it, so the rule puts the burden of tracking time on the lawyer who controls the calendar rather than on the client who cannot see it. A lawyer who agrees to bring a claim and then lets the limitations period run without filing commits the paradigm diligence violation. Later sections show how the lost claim becomes the measure of civil liability.
Does the rule apply when no deadline has been set? It does, because Rule 1.3 does not limit itself to matters with a fixed date, and its command of promptness attaches to the representation itself. Delay injures a client even when no clock expires, because the facts underneath a matter do not stand still. Witnesses move away and their memories fade, documents are discarded, a debtor's finances deteriorate, and a business opportunity the client hoped to protect may close. Meanwhile the client waits in legal limbo, unable to plan around an unresolved dispute. A lawyer must therefore watch the passage of time and what it means for each client, and must act reasonably promptly to bring the matter to resolution.
The comments to Rule 1.3 supply the safety valve: the duty of promptness does not prevent a lawyer from agreeing to a reasonable request for a postponement that will not prejudice the client.3 Courtesy extensions between lawyers are routine, and a rule that forced every lawyer to refuse them would make litigation costlier and more hostile without helping anyone. The line falls at prejudice to the client, not at every delay.
The allowance has limits. A courtesy extension moves only the dates the lawyers themselves control. It does not by itself move a limitations period or a court-ordered deadline, and a lawyer who relies on an informal understanding to do so leaves the client's claim at the other side's mercy. Delay that serves a legitimate client objective, such as time to locate a witness, differs from delay that serves only the lawyer's own convenience.
Zeal Within Limits
Rule 1.3 asks for diligence and promptness; it never mentions zeal and never demands the most combative course available.5 The comments add that a lawyer is not bound to press for every advantage that might be realized for a client.6 A lawyer who reads the rule as a mandate to press every advantage has read into it a command it does not contain.
Diligence still takes real energy. A lawyer who accepts a matter must keep it moving, take the steps a prudent lawyer would take, and aim that effort at the client's lawful goals. The rule stops short of maximum aggression because of where the lawyer stands. A lawyer serves one client but works inside a system of courts and opposing parties, and that system functions only if lawyers present facts and law honestly and play fair in procedure. Were diligence to mean pressing every advantage, a client's instruction to mislead a tribunal, harass a witness, or file a baseless paper would become a duty under Rule 1.3, and diligence would pull against the lawyer's role as an officer of the court. Confining the duty to legitimate means keeps the client's interest in vigorous help from turning into permission for abuse.
Other rules draw that boundary, so Rule 1.3 does not catalog forbidden tactics. Rule 3.1 governs meritorious claims and contentions, Rule 3.3 candor toward the tribunal, and Rule 3.4 fairness to the opposing party and counsel. Rule 4.4(a) bars means that have no substantial purpose other than to embarrass, delay, or burden a third person. Each operates independently of the diligence duty, so a tactic that violates one is forbidden whether or not the client demands it. The diligence question is narrower: did the lawyer keep working through the proper means that remain?
The test to apply is what the lawyer declined to do.
A lawyer who has stopped doing ordinary work will sometimes call the lapse restraint, on the theory that the rules do not require pressing every advantage. That description protects only the refusal of means the rules forbid. When the steps left undone are ones the rules allow and a prudent lawyer would take, the silence is neglect.
The two lawyers differ in what each left undone. The first held back from a tactic the advocacy rules forbid, which Rule 1.3 never asked for. The second held back from proper steps that Rule 1.3 does require, and that violation does not wait for a lost claim. Declining an improper tactic is compatible with the duty; neglecting proper work is not excused by calling it restraint.
Seeing Matters Through
A lawyer who accepts a matter takes responsibility for carrying it forward until the work is finished or the relationship has been lawfully ended, and the representation does not end when the lawyer's enthusiasm does.8 The earlier parts of this chapter asked how fast a lawyer must move and how hard the lawyer may push. This part asks whether the lawyer keeps going to the finish. A lawyer who quits halfway has stopped representing the client in every practical sense while the client still believes the work is underway.
The reason lies in how clients behave once a lawyer has taken their matter. A client who has hired a lawyer ordinarily stops looking for other help, since the point of hiring was to hand the problem to someone else. Deadlines keep running all the same. If the lawyer then stalls without a word, the client goes on believing the work is being handled while the time left to find substitute counsel drains away. A half-finished matter can leave the client worse off than if the lawyer had never started, because a lawyer who declines at the outset gives the client all the remaining time to find someone who will say yes.
Rule 1.16 supplies the lawful exit. That rule governs when a lawyer may or must withdraw and what the lawyer must do on the way out, and its details belong to a separate discussion. Here its role is to end the duty to complete through a formal process that tells the client the lawyer is leaving and leaves time to arrange replacement counsel. The notice is the point of the formality. A lawyer who withdraws properly and a lawyer who simply stops working have both ceased to work on the file, yet only the first has given the client the chance to protect the matter before any deadline is at risk.
The lawyer's reason for stopping does not separate the two, since both had a legitimate reason to leave. The difference is whether each used the proper route out. A lawyer who truly cannot go on has a lawful way to say so, and a good reason to stop is no substitute for using it. Overload, illness, and similar explanations return below as rejected excuses for delay, and they fail for just this reason. The usual way this duty is broken, a lawyer who begins a matter and then lets it go idle without withdrawing, is taken up under typical diligence failures.
The same logic reaches a lawyer who practices alone. A sole practitioner is often the only person who knows which matters are open and when each deadline falls. If that lawyer dies or becomes disabled without warning, every client's deadlines keep running and no one is watching them. For that reason the comments to Rule 1.3 recognize that diligence may require a sole practitioner to prepare a plan under which another lawyer can review the client files and contact the clients if the practitioner dies or is disabled.9 The word is may, so the plan is a practical corollary of the duty and not a freestanding command, but it follows directly from the aim of seeing every matter through.
The two lawyers differ only in whether anyone stands ready to pick up the work. The first has built a file system that depends on one person's continued health, and the second has taken the step that keeps the clients' matters protected when that person is gone.