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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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California Legal Ethics

1.3   Rule 1.3 Diligence

1.3:100   Comparative Analysis of CA Rule

Primary California References: CRPC 3-110
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary:

1.3:101      Model Rule Comparison

MR 1.3 instructs attorneys to act with “reasonable diligence and promptness in representing a client.” The closest corresponding California rule is CRPC 3-110, which combines the duties of competence and diligence found in MR 1.1 and 1.3, respectively. In fact, violations of MR 1.3 typically implicate MR 1.1, as a lack of competence is frequently the cause of a lack of diligence. However, the duties laid out in MR 1.3 correspond most closely with CRPC 3-110(B) which defines competence as diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. See CRPC 3-110. The most relevant portion of CRPC 3-110(B) is the section pertaining to an attorney’s duty to perform diligently.

The MR 1.3 Comment states that an attorney should act “with zeal in advocacy upon the client’s behalf,” whereas the California rule does not contain a requirement of zealous advocacy but rather of diligence. In California, it is expected that an attorney will diligently perform legal services for a client while remaining within the bounds of the law. See People v. Crawford (3rd Dist. 1968) 259 Cal.App.2d 874, 66 Cal.Rptr. 527. Although the Model Rules use the term “zealousy,” MR 1.3 is essentially similar to California’s requirement of diligence. The Comment to MR 1.3 states that a lawyer should pursue a matter on behalf of a client without regard to opposition, obstruction, or personal inconvenience to the lawyer. Additionally, the Comment to MR 1.3 states that a lawyer may take any lawful and ethical measures to vindicate a client’s cause. This is essentially the same interpretation of diligence as can be found in California’s case law. [See 1.3:200 Diligence and “Zeal”, infra].

1.3:102      Model Code Comparison

As with the MR, the California rules contain no requirement of zeal or zealous advocacy. On the other hand, the DR first codified the concept of zealousy. Canon 7 continues this trend by stating that a “lawyer should represent a client zealously within the bounds of law” and DR 7-101 is entitled “Representing a Client Zealously.” In the same light, EC 7-1 instructs that the “duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law.”

Other sections of the DR, however, discuss some of the same concepts as diligence. DR 7-101(A)(1) states that a lawyer “shall not intentionally: (1) [f]ail to seek the lawful objectives of his client through reasonably available means.” Furthermore, DR 7-101(A)(3) calls for a lawyer to not intentionally “prejudice or damage his client during the course of the relationship.” Finally, EC 6-4 emphasizes that an attorney should “give appropriate attention to his legal work.”

1.3:200   Diligence and "Zeal"

Primary California References: CRPC 3-210, 5-100, 2-100, B&PC §§ 6106, 6068
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 28, Wolfram § 10.3

“The duty of a lawyer both to his client and to the legal system is to represent his client zealously within the bounds of the law.” People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769. Although California does not require zealous advocacy, it is expected that a lawyer will perform any service for a client that is appropriate for the advancement of the client’s legal rights so long as it does not violate the law. See generally People v. Crawford (3rd Dist. 1968) 259 Cal.App.2d 874, 66 Cal.Rptr. 527 (an attorney should represent his client to the hilt, even at the cost of professional fraternalism). Furthermore, an attorney is required to advocate for his or her client without regard to personal loss. See People v. Crawford (3rd Dist. 1968) 259 Cal.App.2d 874, 66 Cal.Rptr. 527. Nor should a lawyer’s diligence on behalf of a client be diluted by personal distaste for having to raise a particular issue or by concern for potential adverse impacts upon professional fraternalism. See People v. Crawford (3rd Dist. 1968) 259 Cal.App.2d 874, 66 Cal.Rptr. 527. However, the duty to advocate zealously does not require a lawyer to invest emotion or personal belief in the client’s cause. See Tool Research and Engineering Corp. v. Henigson (2nd Dist. 1975) 46 Cal.App.3d 675, 120 Cal.Rptr. 291 overruled on other grounds by Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498. Nor does zealous advocacy require an attorney to become an insurer of the client’s self esteem or public reputation. See Zalta v. Billups (2nd Dist. 1978) 81 Cal.App.3d 183, 144 Cal.Rptr. 888 (attorneys not liable for malpractice for failing to clarify that defendants were not required to personally contribute to medical malpractice settlement).

Although an attorney has the duty to advocate for his client, an attorney must always respect and defer to those decisions properly reserved to the client. See Davis v. State Bar (1983) 33 Cal.3d 231, 188 Cal.Rptr. 441, 655 P.2d 1276. [See 1.2:300 Authority to Make Decisions for the Client, supra]. If the client rejects the lawyer’s advice the lawyer may not undercut a client’s interests in pursuing a legal course of conduct, even if the lawyer disagrees. Furthermore, the lawyer is under a positive professional obligation to continue the representation with the same zealous regard for furthering the best interests of the client. See EC 7-9. A client seeking to minimize their losses or maximize potential gains are entitled to know the precise limits of the laws within which they can act without committing any violation thereof. See former CRPC 6-101 (1975); Wolfrich Corp. v. United Services Auto. Ass’n (1st Dist. 1983) 149 Cal.App.3d 1206, 197 Cal.Rptr. 446.

CRPC 3-210 prohibits an attorney from advising the violation of any law or rule unless the attorney believes in good faith that the law or rule is invalid. An attorney may take appropriate steps in good faith to test the validity of the law or rule. See Wolfrich Corp. v. United Services Auto. Ass’n (1st Dist. 1983) 149 Cal.App.3d 1206, 1211, 197 Cal.Rptr. 446, overruled on other grounds by Doctor’s Co. v. Superior Court (1989) 49 Cal.3d 39, 48-49, 260 Cal.Rptr. 183, 775 P.2d 508 (attorneys also “have a high obligation to represent and protect the interests of their clients zealously and to that end may properly challenge the validity of any law or decision.”). Therefore, a lawyer cannot be penalized for persistent, vociferous and contentious advocacy unless the lawyer knows or should know that such conduct exceeds the outermost limits of proper representation and hinders the search for truth. See generally In re McConnell (1962) 370 U.S. 230, 8 L.Ed. 2d 434, 82 S.Ct. 1288. However, an attorney is subject to discipline for advising a client to violate a law or a lawful order of the court. See Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal.Rptr. 733, 555 P.2d 1104 (advising client not to appear for deposition despite court order); Waterman v. State Bar (1936) 8 Cal.2d 17, 63 P.2d 1133 (attorney disciplined for advising client and witnesses not to appear in proceeding against the attorney); Townsend v. State Bar (1948) 32 Cal.2d 592, 197 P.2d 326 (attorney advised client to make fraudulent conveyance of real property). An attorney can test the validity of a ruling in good faith but has the duty to yield to the rulings of the court whether right or wrong. If the ruling is adverse, the attorney does not have the right to resist it but only to preserve the point on appeal. See Hawk v. Superior Court of Solano County (1st Dist. 1974) 42 Cal.App.3d 108, 126-27, 116 Cal.Rptr. 713; People v. McKenzie (1983) 34 Cal.3d 616, 194 Cal.Rptr. 462, 668 P.2d 769; EC 7-22; CRPC 3-210. An attorney needs to carefully balance his or her duty to follow the ruling of the court with his or her duty to advocate zealously.

In order to act competently a lawyer must pursue his or her duties diligently. An attorney’s duty to clients encompasses both knowledge of the law and an obligation of diligent research and informed judgment. See Wright v. Williams (2nd Dist. 1975) 47 Cal.App.3d 802, 121 Cal.Rptr. 194. The degree of care expected in discharging his or her duties diligently is that of any lawyer of ordinary skill and capacity in performance of a similar task. See Goebel v. Lauderdale (6th Dist. 1989) 214 Cal.App.3d 1502, 263 Cal.Rptr. 275. By accepting employment to render legal services, an attorney impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill commonly possess and exercise. See Lucas v. Hamm (1961) 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, Kirsch v. Duryea (1978) 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935; Heyer v. Flaig (1969) 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161; see also Goebel v. Lauderdale (6th Dist. 1989) 214 Cal.App.3d 1502, 263 Cal.Rptr. 275 (a lawyer has an obligation to represent his client with such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possessed and performed in the tasks undertaken); Ishmael v. Millington (3rd Dist. 1966) 241 Cal.App.2d 520, 50 Cal.Rptr. 592 (by undertaking to represent a client in an uncontested divorce action, the attorney was found to have assumed a duty of care toward the client). A lawyer is expected to have knowledge of those elementary principles of law which are commonly known by well informed attorneys and to discover additional rules of law which may be readily found by standard research techniques. See Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp. 30, 133 Cal.Rptr. 355. This includes a duty to discover additional rules of law which, although uncommon, may be readily found by standard research techniques. See Goebel v. Lauderdale (6th Dist. 1989), 214 Cal.App.3d 1502, 263 Cal.Rptr. 275; Smith v. Lewis (1975) 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589 (an attorney is not liable for every mistake he may make but he is expected to know the elementary principles of law commonly known to well informed attorneys) overruled on other grounds by In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561. If, however, a lawyer holds himself out as a specialist in an area of law, then he or she must exercise the skill, prudence, and diligence of other specialists of ordinary skill and capacity specializing in that same field. See Wright v. Williams (2nd Dist. 1975) 47 Cal.App.3d 802, 809 121 Cal.Rptr. 194.

If the law in a particular area is unclear, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved. See Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp. 30, 133 Cal.Rptr. 355 However, even as to unclear areas of law, an attorney is expected to perform sufficient research in order to ascertain the relevant legal principles to enable him to make an informed and intelligent decision on behalf of the client. See Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp. 30, 133 Cal.Rptr. 355; Smith v. Lewis (1975) 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589 overruled on other grounds by In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561.

Although by accepting employment an attorney impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess, this does not make him or her liable for every mistake. Thus, in the absence of an express agreement, an attorney does not become an insurer of the soundness of opinions or of the validity of instruments he or she drafts. See Kirsch v. Duryea (1978) 21 Cal.3d 303, 309-310, 146 Cal.Rptr. 218, 578 P.2d 935.

The relation between an attorney and client is a fiduciary relation of the very highest character. See Cox v. Delmas (1893) 99 Cal. 104, 33 P. 836. As a fiduciary to the client, an attorney assumes duties beyond those of mere fairness and honesty. See T&R Foods Inc. v. Rose (Cal.Super. 1996) 47 Cal.App.4th Supp. 1, 56 Cal.Rptr.2d 41. An attorney must undertake to act on behalf of the beneficiary, giving priority to the best interest of the beneficiary. See T&R Foods Inc. v. Rose (Cal.Super. 1996) 47 Cal.App.4th Supp. 1, 56 Cal.Rptr.2d 41; MR 1.2. Competent representation of one’s client is part of the attorney’s ethical responsibility and duty. See In re Wilde Horse Enterprises, Inc. (Bankr. C.D. Cal. 1991) 136 B.R. 830. Failure to act competently, such as failure to use reasonable diligence, is a breach of the attorney’s fiduciary duty to the client. See In re Wilde Horse Enterprises, Inc. (Bankr. C.D. Cal. 1991) 136 B.R. 830.

An attorney not only owes the duty to use skill, prudence and diligence in the performance of the tasks he undertakes, but owes undivided loyalty to the interests professionally entrusted to him. See Goodley v. Wank & Wank, Inc. (2nd Dist. 1976) 62 Cal.App.3d 389, 133 Cal.Rptr. 83. An attorney’s duty of undivided loyalty and diligence is personally owed by the attorney to his client and may not be delegated. See Kracht v. Perrin, Gartland & Doyle (4th Dist. 1990) 219 Cal.App.3d 1019, 268 Cal.Rptr. 637, 544 P.2d 937. This duty, however, is not limited to the client alone, but in the context of estate planning to the intended beneficiaries as well. See Bucquet v. Livingston (1st Dist. 1976) 57 Cal.App.3d 914, 129 Cal.Rptr. 514. [See also, 1.1:410 Duty of Care to Certain Non-Clients, supra]. When an attorney performs in a dual capacity, i.e., performing both legal and non legal services, the services rendered in the dual capacity must conform to the standards of this rule. See Layton v. State Bar (1990) 50 Cal.3d 889, 904, 268 Cal.Rptr. 845, 789 P.2d 1026.

Although a lawyer is bound to advocate diligently, there are certain rules that may not be violated. For instance, an attorney cannot threaten prosecution, see CRPC 5-100; communicate with a party represented by counsel, see CRPC 2-100; communicate with jurors, see CRPC 5-320; hide witnesses, see CRPC 5-310; suppress evidence, see CRPC 5-220; communicate ex-parte with judges or judicial officers, see CRPC 5-300; deceive or mislead the court, client or opposing counsel, see CRPC 5-200, B&PC §§ 6106, 6068(e); or permit a client to commit perjury, see CRPC 5-200.

Additionally, a lawyer’s failure to act diligently may result in the breach of other professional obligations as well. For example, an unreasonable delay that permits the statute of limitations to run may violate the lawyer’s duty of promptness, [see 1.3:200 Diligence and “Zeal,” infra] or the lawyer’s duty of competence, [see 1.1:200 Disciplinary Standard of Competence, supra]; or communication, [see Rule 1.4 Communication, infra]. See, e.g., Donald v. Garry (2nd Dist. 1971) 19 Cal.App.3d 769, 97 Cal.Rptr. 191; see also Lister v. State Bar (1990) 51 Cal.3d 1117, 275 Cal.Rptr. 802, 800 P.2d 1232 (it is a violation of the ethical duties to fail to perform a legal service for which he has been retained and to willfully fail to communicate with a client); Hunniecutt v. State Bar (1988) 44 Cal.3d 362, 243 Cal.Rptr. 699, 748 P.2d 1161 (it is serious misconduct to willfully fail to perform services for which the attorney is retained); Kapelus v. State Bar (1987) 44 Cal.3d 179, 242 Cal.Rptr. 196, 745 P.2d 917 (attorney initially refused client’s calls, failed to respond to subsequent phone calls and registered letters, and failed to return file to client). Typically, the lawyer fails to keep clients informed of the status of their case, engaging in prolonged inaction in reckless disregard of his or her obligation to perform competently, and misrepresenting the status of the case to clients. See Conroy v. State Bar (1991) 53 Cal.3d 495, 280 Cal.Rptr. 100, 808 P.2d 243; see also Layton v. State Bar (1990) 50 Cal.3d 889, 904, 268 Cal.Rptr. 845, 789 P.2d 1026 (willful failure to use reasonable diligence in connection with several matters including the timely filing of inventory and federal tax return); Gadda v. State Bar (1990) 50 Cal.3d 344, 267 Cal.Rptr. 114, 787 P.2d 95 (delay of nearly seven months in filing client’s fifth preference visa application); Van Sloten v. State Bar (1989) 48 Cal.3d 921, 258 Cal.Rptr. 235, 771 P.2d 1323 (failure to use reasonable diligence in procuring marital dissolution); Baranowksi v. State Bar (1979) 24 Cal.3d 153, 154 Cal.Rptr. 752, 593 P.2d 613 (attorney over zealously assessed the merits of the case without researching the case, took advance fees, failed to inform the client he changed his opinion of the case, failed to meet with his client when requested, and failed to return the fee until a week prior to the disciplinary hearing).

A more detailed example of a violation of the rule on diligence can be found in Carter v. State Bar (1988) 44 Cal.3d 1091, 245 Cal.Rptr. 628, 751 P.2d 894. In Carter, disciplinary charges against an attorney for willful neglect, noncommunication, and abandonment were supported by evidence that the attorney failed to file a bad faith insurance claim despite assuring the client for over seven years that the suit was awaiting a trial date. See Carter v. State Bar (1988) 44 Cal.3d 1091, 245 Cal.Rptr. 628, 751 P.2d 894. The attorney also failed to return unearned fees and was slow in returning the file. See Carter v. State Bar (1988) 44 Cal.3d 1091, 245 Cal.Rptr. 628, 751 P.2d 894. Since the attorney decided almost immediately that he did not intend to perform the service for which he had been hired, the attorney should have communicated that fact, returned the files and either refunded any unearned portion of the fee or accounted for its expenditure. See Carter v. State Bar (1988) 44 Cal.3d 1091, 245 Cal.Rptr. 628, 751 P.2d 894. The prolonged period of neglect was evidence that the attorney’s misrepresentations were knowingly made. See Carter v. State Bar (1988) 44 Cal.3d 1091, 245 Cal.Rptr. 628, 751 P.2d 894.

In Alberton v. State Bar (1984) 37 Cal.3d 1, 206 Cal.Rptr. 373, 686 P.2d 1177, an attorney failed to act competently and use reasonable diligence, in the defense of his client who was charged with issuing checks with insufficient funds. See Alberton v. State Bar (1984) 37 Cal.3d 1, 206 Cal.Rptr. 373, 686 P.2d 1177. On several occasions, the attorney failed to appear for scheduled court hearings without notice to the client or the court. Additionally, he improperly completed a waiver for the client and jeopardized his client by presenting the victim of the bad check with a bad check of his own. See Alberton v. State Bar (1984) 37 Cal.3d 1, 206 Cal.Rptr. 373, 686 P.2d 1177.

However, if violation of the rule was made in good faith or was a single instance of misconduct then it is possible that discipline may not be imposed. In Bland v. Reed (2nd Dist. 1968) 261 Cal.App.2d 445, 67 Cal.Rptr. 859, the court noted that an attorney who delays bringing an action until the statute of limitations runs may be guilty of negligence but it may not be actionable if the attorney acted solely with a view to promote the client’s interest.

Additionally, in Read v. State Bar (1991) 53 Cal.3d 394, 279 Cal.Rptr. 818, 807 P.2d 1047 it was alleged that the attorney had hired a certified public accountant to assist her marital dissolution and paid him with a bad check drawn on her client trust account. Despite promising to issue another check, she never did. The court held, however, that the State Bar Court erred in finding a violation of the rules of diligence and competence. See Id. A mere failure to pay one provider of services does not establish a violation. See Id.

Another major situation that often arises in diligence violations is delay. For instance, in Calvert v. State Bar (1991) 54 Cal.3d 765, 1 Cal.Rptr.2d 684, 819 P.2d 424, sufficient evidence supported the finding in attorney disciplinary proceedings that an attorney violated the Rules of Professional Conduct. The attorney continued representation of the client when the attorney knew that she did not have sufficient time, resources and ability to perform the matter with competence. See Id. Although there was no evidence of lack of ability or resources, there was considerable evidence that the attorney did not devote sufficient time to the case after trial. See Id. Moreover, certain uncontradicted testimony of the client showed that when she did speak to the attorney and her secretary she was told that the attorney had insufficient time to attend to her case and that her case was not “emergency work.” See Id. The evidence thus supported the finding that the attorney continued representation when she knew she lacked sufficient time to devote to the case. See Id.

Additionally, in an attorney disciplinary proceeding, the hearing panel of the State Bar did not err in finding that the attorney’s delay of nearly seven months in filing a fifth-preference visa application constituted a lack of diligence and competence. See Gadda v. State Bar (1990) 50 Cal.3d 344, 267 Cal.Rptr. 114, 787 P.2d 95. Under the circumstances, a seven-month delay in filing could cause a commensurately longer delay in the entire application process. The delay resulted in the client’s inability to enjoy the privileges of resident status. See Calvert v. State Bar (1991) 54 Cal.3d 765, 1 Cal.Rptr.2d 684, 819 P.2d 424.

Another major factor in diligence violations is client neglect. Client neglect is a serious form of misconduct that warrants substantial discipline. See Stevens v. State Bar (1990) 51 Cal.3d 283, 272 Cal.Rptr. 167, 794 P.2d 925. Habitual disregard, even when such neglect is grossly negligent or careless, rather than willful and dishonest, is an act of moral turpitude and professional misconduct, justifying disbarment. See Coombs v. State Bar (1989) 49 Cal.3d 679, 262 Cal.Rptr. 554, 779 P.2d 298; see also Blair v. State Bar (1989) 49 Cal.3d 762, 780, 263 Cal.Rptr. 641, 781 P.2d 933 (habitual disregard of clients’ interests by an attorney combined with failure to communicate with clients constitutes acts of moral turpitude justifying disbarment); Ridge v. State Bar (1989) 47 Cal.3d 952, 254 Cal.Rptr. 803, 766 P.2d 569 (it is serious misconduct for an attorney to willfully fail to perform the legal services for which he has been retained, to willfully fail to communicate with a client, and to knowingly misrepresent to a client the status of his case). Such conduct constitutes a serious breach of the fiduciary duty owed by an attorney to his client. See Coombs v. State Bar (1989) 49 Cal.3d 679, 262 Cal.Rptr. 554, 779 P.2d 298; Matthew v. State Bar (1989) 49 Cal.3d 784, 263 Cal.Rptr. 660, 781 P.2d 952; Blair v. State Bar (1989) 49 Cal.3d 762, 263 Cal.Rptr. 641, 781 P.2d 933.

An attorney’s duty to act diligently and competently does not end when the trial is over. See In re Benoit (1973) 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97 (if a criminal defendant requests an attorney to file notice of appeal, attorney must do so or clearly and immediately inform defendant he will not file such notice that defendant can file the notice himself according to the procedure detailed by the trial judge); People v. Tucker (1964) 61 Cal.2d 828, 40 Cal.Rptr. 609, 395 P.2d 449 (an attorney may tell his client that in his opinion an appeal would lack merit, but unless the client abandons his request for appeal, the attorney should be under a duty to file the appeal, to secure other counsel or to instruct defendant as to the proper procedure); In re Fountain (4th Dist. 1977) 74 Cal.App.3d 715, 141 Cal.Rptr. 654 (if an attorney decides an appeal is useless, too expensive, or that his compensation is inadequate and the client disagrees, the attorney may withdraw but should not allow time to file appeal to lapse without advising the client of danger of loss of right to appeal). Negligence of an attorney in failing to take proper steps to protect his client’s right of appeal or review has been held actionable where, as a result, the right of appeal was lost. See Pete v. Henderson (1st Dist. 1954) 124 Cal.App.2d 487, 269 P.2d 78. However, plaintiff needs to show that if the appeal or new trial had been obtained a judgment more favorable to the plaintiff would have resulted. See Pete v. Henderson (1st Dist. 1954) 124 Cal.App.2d 487, 269 P.2d 78 Additionally, failure of an attorney to take steps to reduce a sentence in excess of the maximum penalty, failure to file petition for certiorari, and failure to raise an appropriate defense may constitute negligence. See Martin v. Hall (2nd Dist. 1971) 20 Cal.App.3d 414, 97 Cal.Rptr. 730. In Fitzpatrick v. State Bar (1977) 20 Cal.3d 73, 141 Cal.Rptr. 169, 569 P.2d 763, an attorney was unable to justify his failure to file a brief on appeal in a criminal matter on the theory that he did not have the necessary transcripts. The client denied receiving the transcripts that the Court of Appeal stated it had sent him and the attorney was unsuccessful in his attempt to obtain them from the Attorney General’s office. See Fitzpatrick v. State Bar (1977) 20 Cal.3d 73, 141 Cal.Rptr. 169, 569 P.2d 763. However, the attorney made no further attempt to obtain the transcripts and offered no explanation for his failure to seek an extension on the brief. See Fitzpatrick v. State Bar (1977) 20 Cal.3d 73, 141 Cal.Rptr. 169, 569 P.2d 763.

Another type of case that typically implicates diligence is improper withdrawal by an attorney. If an attorney is essentially withdrawing from employment, he is obligated to give due notice to the client and take steps to avoid foreseeable prejudice, steps which include delivering to the client in a timely manner all papers and property to which the client is entitled. See Ridge v. State Bar (1989) 47 Cal.3d 952, 254 Cal.Rptr. 803, 766 P.2d 569; see also John F. Matull and Associates, Inc. v. Cloutier (2nd Dist. 1987) 194 Cal.App.3d 1049, 240 Cal.Rptr. 211 (an attorney has an ethical duty to inform clients she is withdrawing from representation); Read v. State Bar (1991) 53 Cal.3d 394, 279 Cal.Rptr. 818, 807 P.2d 1047 (attorney withdrew from a case without consent of the client or court approval and without taking reasonable steps to avoid causing foreseeable prejudice to clients); Vaughn v. State Bar (1972) 6 Cal.3d 847, 100 Cal.Rptr. 713, 494 P.2d 1257 (an attorney who arranges for another attorney to replace him in proceedings has a duty to prepare him for those proceedings).

In Garlow v. State Bar (1988) 44 Cal.3d 689, 244 Cal.Rptr. 452, 749 P.2d 1307, an attorney was found to have violated the rules on professional conduct by failing to return unearned legal fees on his withdrawal from service. Although the attorney had not actually withdrawn, the attorney had been fired because he had effectively withdrawn from representing a client by failing to perform services as agreed. The attorney had consciously avoided the client’s telephone calls, failed to communicate the status of her case, and failed to resubmit documents for filing that had been rejected for his failure to include the proper fee. Moreover, such conduct was a violation of professional rules proscribing the accepting of employment that an attorney is incompetent to perform.

Similarly, abandonment of clients is a violation of the ethical rules. See Read v. State Bar (1991) 53 Cal.3d 394, 279 Cal.Rptr. 818, 807 P.2d 1047 (effectively withdrawing from representation of clients without returning fees advanced and moving offices without notifying clients was found to be a violation of the ethical rules). But see Young v. State Bar (1990) 50 Cal.3d 1204, 270 Cal.Rptr. 315, 791 P.2d 994 (attorney’s unannounced move from state could not constitute “pattern of misconduct,” upon which the Supreme Court could rely in imposing harsher sanctions, even though the move resulted in attorney’s abandonment of several clients).

However, where a client instructs an attorney to pursue a course of action that is frivolous or taken purely for purpose of delay, then the attorney is required to inform the client that the attorney’s professional responsibility precludes him or her from taking such action, and to withdraw from the representation. See Cosenza v. Kramer (1st Dist. 1984) 152 Cal.App.3d 1100, 200 Cal.Rptr. 18. [See also, Rule 1.16 Declining or Terminating Representation, infra for further discussion on withdrawal of attorneys]. An appeal is frivolous when it is prosecuted for an improper motive, such as to harass or delay, such that any reasonable attorney would agree that the appeal is totally and completely without merit. See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.

No matter how difficult the task, once an attorney has been assigned to represent a client, he is bound to represent his client to the best of his abilities. See People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769. An attorney is not relieved of the duty to act as a vigorous advocate and should provide the client with whatever defense can be mustered despite the fact that a client may be uncooperative or that the trial court’s ruling on a substantive motion appears to be arbitrary or incorrect. See People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769 Any other course would be contrary to the attorney’s obligation. See People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769.

Additionally, there may be consequences for the client as well as the judicial system by not providing diligent services. For example, since a criminal defendant has a constitutional right to effective assistance of counsel, a conviction may be set aside and a new trial granted if the defense attorney is incompetent. See People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859. Thus, when an attorney takes on more cases than he or she can handle, the attorney jeopardizes both the client’s cause and public interest in sound, efficient administration of justice. See Lopez v. Larson (2nd Dist. 1979) 91 Cal.App.3d 383, 153 Cal.Rptr. 912 (failure to serve sole defendant for twenty-eight months or to take any action to prosecute case to trial until defendant moved to dismiss thirty months after suit was filed).

Violation of the ethical rules on diligence is not mitigated by the fact that an attorney is serving in public office. See Blair v. State Bar (1989) 49 Cal.3d 762, 780, 263 Cal.Rptr. 641, 781 P.2d 933. In Blair, the court held that the fact that an attorney had employment as the city attorney and a private law practice was not a mitigating factor in neglecting legal matters. See also McMorris v. State Bar (1983) 35 Cal.3d 77, 85, 196 Cal.Rptr. 841, 672 P.2d 431 (lack of diligence is not excused by the fact that the lawyer has assumed public service duties or by the lawyer’s past literary contributions or participation in important criminal appeals).

An attorney’s standard of professional conduct is not altered for pro bono clients. See Segal v. State Bar (1988) 44 Cal.3d 1077, 245 Cal.Rptr. 404, 751 P.2d 463 (it is not a defense for an attorney’s poor performance in processing corporation documents for two nonprofit organizations that he had accepted the matters on a pro bono basis). If an attorney lacks the time and resources to pursue a client’s case with reasonable diligence, the attorney should decline to represent the client, regardless of whether the client is pro bono or not. See Segal v. State Bar (1988) 44 Cal.3d 1077, 245 Cal.Rptr. 404, 751 P.2d 463; see also Blair v. State Bar (1989) 49 Cal.3d 762, 780, 263 Cal.Rptr. 641, 781 P.2d 933 (residents of high crime or poverty stricken areas may not be subjected to lesser standard of legal representation).

There are several factors which can work to mitigate discipline in lack of diligence cases. First, actual injury to the client may affect the severity of the discipline imposed. See e.g., Spindell v. State Bar (1975) 13 Cal.3d 253, 118 Cal.Rptr. 480, 530 P.2d 168 (attorney refused to return client’s calls, failed to obtain marital dissolution, and failed to supervise his secretary when she informed the client that it was permissible for her to remarry). Second, acute depression or other psychological problems can explain and mitigate, but not excuse, violations of this rule. See Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 264 Cal.Rptr. 439, 782 P.2d 680 (severe psychological, physical and financial difficulties); Frazer v. State Bar (1987) 43 Cal.3d 564, 238 Cal.Rptr. 54, 737 P.2d 1338 (periodic agoraphobia); Tenner v. State Bar (1980) 28 Cal.3d 202, 168 Cal.Rptr. 333, 617 P.2d 486 (alcoholism). However, emotional disorders are not necessarily a mitigating factor. See Phillips v. State Bar (1989) 14 Cal.3d 492, 121 Cal.Rptr. 605, 535 P.2d 733 (emotional disorders are only a mitigating factor if there is clear and convincing evidence that the attorney no longer suffers from the disorder).

Third, if an attorney acts in good faith and in honest belief that his acts and advice are well founded and in the best interest of his client, he is not held liable for mere error in judgment. See In re Watts (1903) 190 U.S. 1, 47 L.Ed. 933, 23 S.Ct. 718. Thus, in Inniss v. State Bar (1978) 20 Cal.3d 552, 143 Cal.Rptr. 408, 573 P.2d 852, even though petitioner’s decision to postpone legal action while awaiting resolution of test case was wrong, it was apparently made in good faith. Thus, this was taken into consideration in imposing discipline under the rules of professional conduct. See Inniss v. State Bar (1978) 20 Cal.3d 552, 143 Cal.Rptr. 408, 573 P.2d 852. Ironically, if a lack of competence is the cause of improper delays, that fact may serve to actually mitigate the discipline imposed, if there is no bad faith or desire to benefit at the client’s expense. See Lewis v. State Bar (1981) 28 Cal.3d 683, 170 Cal.Rptr. 634, 621 P.2d 258 (problems caused by total lack of experience in probate matters); Davis v. Damrell (1st Dist. 1981) 119 Cal.App.3d 883, 174 Cal.Rptr. 257 (if reasoned exercise of judgment is used then there is no professional negligence).

On the other hand, neither an attorney’s low fees nor his busy practice and lack of management skills constitute circumstances which substantially mitigates misconduct in disregarding client’s interest by failing to perform services, misrepresenting status of cases, failing or refusing to communicate and failing to return unearned fees. See Farnham v. State Bar (1976) 17 Cal.3d 605, 131 Cal.Rptr. 661, 552 P.2d 445; see also Layton v. State Bar (1990) 50 Cal.3d 889, 268 Cal.Rptr. 845, 789 P.2d 1026 (executor/attorney’s adequate investment of cash assets of the estate cannot excuse his willful failure to use reasonable diligence, failure to perform legal services competently, and violation of oath and duties in connection with handling of other estate matters).

1.3:300   Promptness

Primary California References: B&PC § 6068
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 28, Wolfram § 10.3

An attorney has a duty to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney agreed to provide legal services. See B&PC § 6068(m). The comment of MR 1.3 notes that “no professional shortcoming is more widely resented than procrastination.” Even when the client’s interests are not affected in substance an unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. See MR 1.3. A prejudicial delay is a clear violation of the ethical rules. See Spindell v. State Bar (1975) 13 Cal.3d 253, 118 Cal.Rptr. 480, 530 P.2d 168 (lawyer delayed in obtaining a dissolution of marriage as well as failed to communicate with his client despite persistent attempts by the client to speak with him).

There are several situations requiring an attorney to act promptly. See Shalant v. State Bar (1983) 33 Cal.3d 485, 189 Cal.Rptr. 374, 658 P.2d 737 (if the client has been named as a defendant in a civil action the client must be notified promptly); In re Ramirez (9th Cir. BAP 1995) 183 B.R. 583 (an attorney had a duty to promptly surrender any communicated work product contained in the client’s file upon the client’s request). See generally Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421; Johnson v. Haberman & Kassoy (2nd Dist. 1988) 201 Cal.App.3d 1468, 247 Cal.Rptr. 614 (an attorney owes a duty to communicate to his client whatever information the attorney acquires in relation to the subject matter involved in the transaction).

An attorney must use his best efforts to accomplish with reasonable speed the purpose for which he was employed. See Butler v. State Bar (1986) 42 Cal.3d 323, 228 Cal.Rptr. 499, 721 P.2d 585, (it is settled that failure to communicate with, and inattention to the needs of a client are grounds for discipline). An attorney’s failure to communicate with clients and failure to use his best efforts and reasonable speed to accomplish the purposes for which he was employed are grounds for discipline. See Hartford v. State Bar (1990) 50 Cal.3d 1139, 270 Cal.Rptr. 12, 791 P.2d 598; Van Sloten v. State Bar (1989) 48 Cal.3d 921, 258 Cal.Rptr. 235, 771 P.2d 1323; King v. State Bar (1990) 52 Cal.3d 307, 276 Cal.Rptr. 176, 801 P.2d 419 (failing to serve a summons and complaint within time limits, resulting in dismissal of client’s complaint upon the defendants’ motion, failing to deliver a client’s file, failing to pay a default judgment, and failing to probate a simple will for three years, is “willful” violation of the rules of ethical conduct). Such a failure is a breach of the duty owed to each client by an attorney. See Van Sloten v. State Bar (1989) 48 Cal.3d 921, 258 Cal.Rptr. 235, 771 P.2d 1323; Butler v. State Bar (1986) 42 Cal.3d 323, 228 Cal.Rptr. 499, 721 P.2d 585 (attorney’s duty to communicate with client includes those persons who attorney reasonably believes are clients, even to advise them they are not clients). The attorney’s duty to give reasonably prompt attention continues until the matter is complete or the relationship is terminated. See generally Chavez v. Carter (2nd Dist. 1967) 256 Cal.App.2d 577, 64 Cal.Rptr. 350.

However, an attorney did not commit actionable negligence by, in the reasonable exercise of his judgment, failing to notify his clients’ property and liability insurance carrier of a pending lawsuit against his clients arising out of their sale of real property. See Banerian v. O’Malley (1st Dist. 1974) 42 Cal.App.3d 604, 116 Cal.Rptr. 919. The loss or injury involved occurred two months after the policy terminated by its terms and more than one year after the clients had sold the property. See Id. Thus, it appeared the clients had no insurable interest in the property at the time of the lawsuit. See Id. There was a serious question as to whether the policy covered the loss in question and the clients alleged that they had notified the insurer themselves of the pending action. See Id.

Often a lack of promptness compounds problems with diligence. For example, in Olguin v. State Bar (1980) 28 Cal.3d 195, 167 Cal.Rptr. 876, 616 P.2d 858, an attorney was found to have not exercised reasonable diligence. The attorney failed to promptly provide a client with status reports and files and failed to promptly respond to inquiries from substitute counsel. See Id. This resulted in substitute counsel not becoming attorney of record and dismissal of action due to statute of limitations. See Id. In Segal v. State Bar (1988) 44 Cal.3d 1077, 245 Cal.Rptr. 404, 751 P.2d 463, an attorney was found to not have acted within a reasonable time frame when he was aware his clients needed nonprofit status to obtain contributions yet took nine months to file the incorporation documents for one client and four months to file them for another. In both cases the documents consisted of less than twenty pages. See Id. Furthermore, because of the attorney’s failure to provide services, his clients were forced to find alternative means of completing the incorporations. See Id.

Although a difficult client is a fearful thing, it does not excuse an attorney’s willful failure to respond to numerous notes and telephone calls from the client over a period of several months. See Farnham v. State Bar (1976) 17 Cal.3d 605, 131 Cal.Rptr. 661, 552 P.2d 445. Nor can an attorney’s failure to employ reasonable promptness be excused by an overburdensome case load. See In re Stanley (3rd Dist. 1981) 114 Cal.App.3d 588, 170 Cal.Rptr. 755 (lawyer subject to contempt for failure to appear at trial when such failure was caused by breakdown in office procedures regarding scheduling of court appearances).