Improper Delay

Rule 3.2 states the duty to expedite in one sentence and never says what unreasonable delay looks like.¹ The commentary supplies the picture by naming delays that accomplish nothing except the delay itself, and these are the situations most likely to appear in a bar-exam fact pattern.² Each one applies the same objective test: a competent lawyer acting in good faith would see no substantial purpose in the step besides delay, and the client's legitimate interests do not protect it.

In all three illustrations, someone gains from the wait. The gain goes to lawyers who prefer a lighter calendar, to a party who hopes to wear an opponent down, or to a client who profits from each month the case stays open. The gain is real, and that is why the conduct tempts. But the rule asks what a step accomplishes in the case, and a bare advantage to someone involved does not answer that question.

The illustrations differ in who gains. We take them in turn: the lawyers' own convenience, the aim of frustrating the opponent, and the client's profit from time alone.

Counsel's Convenience

The commentary's first illustration is the easiest delay to recognize: a case drifts because the lawyers would rather work at a comfortable pace.³ A lawyer may properly seek a postponement for a personal reason on a particular occasion. A lawyer may not routinely fail to expedite solely for the convenience of the advocates.⁴ The word routine carries the distinction. One accommodation for a genuine personal need does not show a case slowed for its own sake, while a habit of postponements, all explained by the lawyer's preference, shows that the postponement is the point.

This illustration applies the objective test directly. A lawyer's comfort has no connection to the client's case or to a fair resolution of the dispute, so a competent lawyer acting in good faith would find no substantial purpose in it. The client-interest qualifier offers no cover. That clause protects the client's interests, and a preference for a lighter month or a more enjoyable matter belongs to the lawyer. The client may well be hurt by the wait.

The costs and benefits of convenience delay land on different people. The lawyer alone enjoys the lighter schedule. The opposing party pays for the wait in legal fees and in the time before the dispute is resolved, and the court holds a calendar slot that other cases could have used. A duty to expedite exists to reach a benefit that flows only to the person who controls the pace and is paid for by everyone else. For the same reason, the other side's agreement does not turn convenience into purpose. When both lawyers simply prefer the slower pace, the clients and the court still bear part of the cost and agreed to nothing.

A request for more time can therefore fall on either side of the line, depending on what stands behind it.

Two questions sort most exam stems that mention a lawyer's personal reason for seeking time. Is the request a single accommodation or part of a pattern? Does its reason connect to competent representation of the client, or only to the lawyers' comfort? Treating every personal reason as a violation is wrong, because the commentary recognizes that an occasional postponement for a personal reason can be proper. Treating a sympathetic label as the end of the analysis is also wrong, because a repeated pattern grounded in preference has no purpose beyond the lawyers' comfort.

Frustrating an Opponent's Recovery

The commentary names a second kind of unreasonable delay, and this one is aimed at the other side: a failure to expedite is not reasonable when its purpose is to frustrate an opposing party's attempt to obtain rightful redress or repose.⁶ Redress is the relief a court can give a person who has been wronged, such as damages. Repose is the settled peace a party gains when a claim against it is finally resolved. The protection therefore runs to whichever side is waiting on the court, whether the claimant who wants a recovery or the defendant who wants the dispute ended. Either way the objection is the same: the lawyer is using the calendar as a weapon.

Delay and cost fall unevenly on the two sides of a dispute, and that imbalance is what makes the tactic work. A claimant waiting for a recovery keeps paying legal fees, may be unable to cover medical bills or payroll, and watches witnesses' memories fade. The party that owes the money may pay little for the same months and may keep the use of the funds. A lawyer who understands this can create pressure simply by letting time pass, because a claimant who cannot afford to wait may accept far less than the claim is worth just to end the waiting. The result then tracks which party can endure longer, and the merits drop out of the picture. A duty to expedite that looks to the purpose of a delay blocks the use of procedure to produce that result.

Mancia v. Mayflower Textile Servs. Co. describes the same conduct in the discovery setting. A lawyer who drives up the adversary's costs until the case settles just to avoid them, or who delays the completion of discovery to prolong the litigation for tactical advantage, hinders the adjudication process and makes the deciding tribunal's task harder.⁷ The court treated that conduct as a violation of the lawyer's duty of loyalty to the procedures and institutions the adversary system serves.⁸ Because that loyalty runs to the system as well as to the client, a client's wish for leverage over the opponent does not excuse the tactic. The opinion also observed that rules of procedure, ethics, and even statutes mark limits on how the adversary system may operate during discovery, so the ethics rule is one of several constraints aimed at the same abuse.⁹

An exam stem that gives two lawyers the same calendar and asks which one violated the rule is testing purpose, because the months can be identical while the reasons for them are not.

The elapsed time is the same in both suits, and the plaintiff is equally strained in both, so neither the length of the wait nor the opponent's discomfort decides the question. The first lawyer filled the months with work the rules allow, namely investigation and preparation of a good-faith defense. That work is a substantial purpose besides delay, even though the plaintiff paid for the wait. The second lawyer's months held no work, and a competent lawyer acting in good faith would see that the schedule served only to push the plaintiff toward giving up. Because purpose is judged objectively, the facts that expose it are the ones visible when the steps were taken: reschedulings with no real conflict, responses withheld while no task is under way, awareness of the opponent's financial need, and settlement offers timed to the opponent's weakest moments. The breach is complete once the lawyer pursues the delay for that purpose, so a plaintiff who holds out and refuses to settle does not cure it.

Two errors are common here. One treats any delay that hurts the opponent as a violation, which would punish a lawyer who takes the time the rules allow to investigate a complex claim and then files timely, good-faith defenses. The other assumes that a lawyer who stays within the formal rules cannot be stalling, when permitted steps can be used one after another as pressure on a party who cannot afford to wait. The next subsection turns to delay whose payoff is a benefit the client collects from time alone.

Client's Improper Benefit

The commentary completes the boundary that the client-interest qualifier began: realizing a financial or other benefit from otherwise improper delay is not a legitimate interest of the client.¹¹ The qualifier lets a lawyer decline to hurry when speed would harm the client. This sentence names an interest that cannot justify going slowly. A lawyer accused of stalling therefore cannot answer that the client wanted the extra time, because that wish is exactly what the rule refuses to credit.

Delay pays some clients, and the reason lies in litigation itself. A party that owes money keeps the use of it until judgment, a party in possession of property stays there, and a party facing an unwelcome ruling postpones the day it arrives. These gains are genuine, but the rule does not count them as interests that excuse the lawyer. The reason follows from who pays. Opposing parties and the court absorb the cost of every month a case lingers, while the client collects the benefit. If that benefit could justify the delay, the party with the most to gain from stalling would set the pace of the case, and the qualifier would swallow the duty, since in many cases the client who owes, occupies, or resists prefers a later date.

The rule does not condemn every delay that happens to help the client, and the line is the one the objective test already draws. That test asks whether a competent lawyer acting in good faith would see a substantial purpose in the step other than delay. The benefit a client collects from waiting is the payoff of the delay. A purpose is something the step accomplishes in the case apart from the waiting, such as obtaining a controlling legal answer or securing essential evidence. When a step has such a purpose, the client's incidental gain from the extra time does not taint it. When the step does nothing except keep the case open, the client's gain is the only reason left, and the commentary says that reason is not legitimate. An exam stem will often state the client's motive in a single sentence, and the question it poses is whether anything besides that motive explains what the lawyer did.

The client's instruction does not change the result. The duty belongs to the lawyer, and following the instruction would carry out an improper wish and leave no legitimate client interest for the qualifier to protect. This scene overlaps with the preceding subsection, because a debtor who stalls this way usually frustrates the creditor's recovery too. The focus here is on what the client takes from the delay, and the commentary's answer is that profit from time alone is not an interest the rule recognizes.

Both contractors enjoy the same financial gain, so the gain cannot separate breach from compliance. What differs is whether the step accomplishes anything besides the waiting. A frequent mistake on a stem like the second is to treat the client's benefit as a taint that condemns the request. The commentary condemns delay whose only justification is the benefit, and it says nothing against a request that rests on an independent purpose. The details of the request also matter under the objective test. A modest stay tied to a decision that is actually pending shows that the stated purpose is real, while a year-long stay with no decision pending would look like a pretext that a competent lawyer acting in good faith would not credit.

The qualifier works from the opposite side in these scenes. A lawyer who resists an early trial date because a defense expert's report is unfinished protects a legitimate interest, and the qualifier supports her. In the first contractor scene, the only interest on offer is the profit from time itself, and the qualifier has nothing to protect. In the second, the step stands on its own purpose and needs no help from the qualifier.