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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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Delaware Legal Ethics

1.3 Rule 1.3 Diligence

1.3:100 Comparative Analysis of Delaware Rule

1.3:101 Model Rule Comparison

The DLRPC 1.3 is identical to Model Rule 1.3.

1.3:102 Model Code Comparison

DR 6-101(A)(3) called for a lawyer not to “[n]eglect a legal matter entrusted to him,” and according to EC 6-4, to “give appropriate attention to his legal work.” Canon 7 called for a lawyer to “represent a client zealously within the bounds of the law.” DR 7-101(A)(3) provided that a lawyer “shall not intentionally…[p]rejudice or damage his client during the course of the relationship,” nor shall a lawyer “intentionally…fail to seek the lawful objectives of his client through reasonably available means permitted by law…” DR 7-101(A)(1).

1.3:200 Diligence and “Zeal”

Under Delaware Rules, it is not appropriate to allow “opposition, obstruction or personal inconvenience to the lawyer” to get in the way of an attorney taking “whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.” Comment [1]. Lawyers are responsible for controlling their workload to ensure that “each matter can be handled competently.” Comment [2]. It is not unusual for disciplinary actions to involve solo practitioners who take on too much work or where outside distractions, including substance abuse, family issues, and other concerns, are allowed to interfere with the diligent representation of their clients in violation of Rule 1.3.

Multiple counts of violating Rule 1.3 were brought against an attorney for failure “to engage in a more active and organized effort to find an expert witness to support the client’s medical negligence claim,” while a 60 day statutory clock was ticking; failing to comply with a court order to provide an Answer to a motion to dismiss; and failure to comply to produce discovery responses.” Delaware Office of Disciplinary Council, Disciplinary Action – Private Admonition with Conditions, Board Case No. 7, 2004 (April 20, 2004).

An attorney, with “substantial experience in the practice of law,” was disciplined for not acting with proper diligence and zeal and thus violating Rule 1.3 by “failing to conduct an independent evaluation of a testator’s competence and capacity for undue influence in signing his final estate documents.” Delaware Office of Disciplinary Council, Private Admonition, Board Case No. 16, 2003 (Oct. 31, 2003).

Another attorney was found to be in violation of 1.3 for not diligently following up on an application for a continuance in a Family Court case, when “under the mistaken belief that the continuance had been granted,” the attorney informed the client not to attend the case review. In Re Mekler, 669 A.2d 665, 660 (Del. 1995).

An attorney, based on a failure of diligence by the attorney to ascertain the correct information, erroneously informed his client that the client could repossess a vehicle in bankruptcy proceedings. In Re Benge, 754 A.2d 871, 877 (Del. 2000). The attorney further compounded the violation of Rule 1.3 by not passing on letters from the opposing council to the client pointing out the attorney’s error, or informing the client of, appearing, “or do[ing] anything to represent” the client at a hearing to resolve the situation, resulting in the client being sanctioned. Id.

It is the responsibility of the attorney to act diligently in matters of representation so long as the attorney-client relationship exists. Any question regarding whether an attorney-client relationship exists should be resolved by the attorney, and communicated to the client. Comment [4].

An attorney was approached by a prospective client after the client had been involved in an automobile accident. Although the attorney did not normally handle cases of this kind, despite the fact that he concluded there was no defense to the suit, and also knowing that the potential client did not have automobile insurance, he told the prospective client that he would look into the matter. During several phone calls with the prospective client, the attorney “failed to make clear that he did not represent her . . . in this matter.” In Re Reardon, 759 A.2d 568, 571 (Del. 2000). The prospective client relied on the attorney’s representation that the attorney would look into the matter. The attorney did not diligently pursue the matter and the case ended in default judgment against the perspective client. Id. Despite no formal attorney-client relationship existing, the attorney was still found in violation of Rule 1.3. Id. at 573.

1.3:300 Promptness

Under Delaware Rules, it is not appropriate for lawyers to needlessly delay addressing the issues and concerns of their clients. Comment [3]

An attorney was found in violation of Rule 1.3 when the attorney learned that the court had denied a motion to recall an arrest warrant in August of 1994, but did nothing about it until December 1996, after the client had already filed a complaint against the attorney with the Office of Disciplinary Counsel. In Re McCoy, No. 260, 1997 Del. LEXIS 259, at *2 (Del. 1997).

An attorney was found in violation of Rule 1.3 when, in a contract dispute, the attorney did not attend a hearing, did not advise the client of the consequence of not attending, which resulted in a default judgment against the client and the client’s property being sold at a sheriff’s sale. In Re Reardon, 759 A.2d 568, 571 (Del. 2000).

The Court found an attorney in violation of Rule 1.3 by improperly delaying the recording of deeds and mortgages arising out of at least three real estate settlements conducted by the attorney. The attorney had become overwhelmed in his solo practice. In Re Greene, 701 A.2d 1061, 1063 (Del. 1997).

It is the responsibility of the attorney to be prompt even when such a delay does not affect in substance the client’s interests. Comment [2]

An attorney in a property settlement concluded the settlement with one issue, the title of the driveway, still outstanding. The attorney did not get back to the client or resolve the issue for over a year. The attorney was still found in violation of Rule 1.3 “[e]ven though the [clients’] interests were not adversely affected, [since] their confidence in [the attorney’s] trustworthiness were undermined by his actions.” In Re McCann, No. 381, 1997 Del. LEXIS 347, at *18.

It may also be the responsibility of the attorney in a solo practice to ensure prompt action on matters of representation which would result upon the attorney’s death or disability, by having in place an up-to-date plan to ensure prompt action. Comment [5].

Under Delaware law, an attorney’s responsibility to be prompt extends beyond the client to the Courts, opposing counsel, and witnesses. In Re Tos, 576 A.2d 607, 662 (Del. 1990). The Delaware Supreme Court has held that an attorney violated 1.3 when he failed to discharge the “duty to see that [the attorney’s] cases were scheduled so that there was a reasonable anticipation that they could all be tried without delaying the Courts, opposing counsel, his clients, and witnesses.” Id. In Tos, the attorney continued to request various continuances holding up numerous cases. The judge concluded that the attorney was the source of the scheduling problem, as was the judge with whom the complaint was filed. Id. He took 5 months between the time of the filing of the petition and the review of the file, causing a weak case “to unnecessarily drag on for five months.” Id. at 664. Furthermore, in another case, the attorney did not comply with a letter from the Delaware Supreme Court that stipulated a date for filing a certificate, stating that the notice of appeal had been served. Id. 662. In yet another case, the attorney did not respond to a request from Family Court to prepay for a transcript. Id. Despite the fact that the attorney became ill two days before the deadline and the client refused to make a prepayment, the attorney was found in violation of 1.3, partially because this information was not forwarded to the court in a prompt manor.

In another case, an attorney was found in violation of Rule 1.3 for “failure to allocate his time appropriately so that he could appear in court as required without delaying the court, the opposing attorney and his client.” In Re Mekler, 669 A.2d 655, 661 (Del. 1995).