A lawyer shall act with reasonable diligence and promptness in representing a client.

Background

The Louisiana Supreme Court readopted this rule on January 2, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 1.3 (2002).

Comments to ABA Model Rule 1.3

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s 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.

[2] A lawyer’s work load must be controlled so that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.

[5] To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).

Annotations

Diligence and Zeal

This rule nominally replaces the lawyer’s obligation to represent a client “zealously”–which was previously set forth in Canon 7 of the former Louisiana Code of Professional Responsibility–with an obligation to act diligently and promptly. Nevertheless, Louisiana lawyers often justify their professional conduct by reference to the perceived obligation to represent their clients zealously. Moreover, the official comments to ABA Model Rule 1.3 state that a lawyer should act with “commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.” See Model Rules of Professional Conduct Rule 1.3 cmt. 1. Thus, while the duty of “zealous representation,” per se, does not appear in the current Louisiana Rules of Professional Conduct, it is a phrase often used by Louisiana lawyers. (Unfortunately, some lawyers invoke the refrain of “zealous representation” in an effort to justify unprofessional and uncivil conduct.)

Common Violations

The Louisiana Office of Disciplinary Counsel alleges violations of this rule in a significant percentage of the cases it prosecutes. Lawyers commit infractions of this rule when they negligently or intentionally ignore matters that warrant attention. Such inattention may result in a matter taking an unreasonably long period of time to be resolved. See In re Schaefer, 725 So. 2d 1289 (La. 1999); see also In re Roberson, 19 So.3d 1186, 2009-1353 (La. 10/16/09) (attorney’s lack of diligence caused client’s matter to be dismissed). Moreover, inattention may cause a matter to prescribe prior to the filing of suit. See, e.g., In re Williams-Bensaadat, 964 So. 2d 317 (La. 2007); In re Jackson, 842 So. 2d 359 (La. 2003); In re Thompson, 712 So. 2d 72 (La. 1998); In re Yaeger, 698 So. 2d 951 (La. 1997). Lawyers also commit infractions of this rule when they abandon the practice of law without making adequate arrangements to protect the interests of their clients. See In re Pharr, 950 So. 2d 636, 639-640 (La. 2007) (holding that an attorney violated Rule 1.3 by failing to act with the diligence necessary to preserve his client’s funds); see also In re Bivins, 724 So. 2d 198 (La. 1998). To avoid diligence-related problems, lawyers should implement office practices and procedures to ensure that critical deadlines are properly calendared, to ensure that active files are periodically reviewed, and to ensure that all clients are regularly informed about the progress of their matters.

Relationship to Other Rules

A lawyer’s duty of diligence is closely related to the duties of competence and communication. Indeed, many disciplinary actions prosecuted by the Louisiana Office of Disciplinary Counsel for alleged violations of this rule have been joined with alleged violations of Rule 1.1 (competence) and Rule 1.4 (communication). Several lawyers who became aware of violations of their duty of diligence and who then attempted to settle improperly their potential malpractice liability have been prosecuted for violating Rule 1.8. See In re Thompson, 712 So. 2d 72 (La. 1998).

Criminal Practice

Both prosecutors and defense counsel have an obligation to promptly and diligently resolve criminal matters. A prosecutor should “avoid unnecessary delay in the disposition of cases,” act with “reasonable diligence and promptness in prosecuting an accused,” and not “intentionally use procedural devices for delay for which there is no legitimate basis.” See ABA Stds. Relating to the Admin. of Crim. Justice–The Def. Function std. 3-2.9. Furthermore, a prosecutor should be “punctual in attendance in court” and in the filing of all papers. Id. A defense lawyer likewise should “act with reasonable diligence and promptness in representing a client,” “avoid unnecessary delay,” and be “punctual” in court and in the filing of papers. See id. std. 4-1.3. See also In re Vix, 11 So.3d 1090 (La. 2009) (suspending a criminal defense attorney for two years for repeatedly failing to file briefs for numerous clients; all but three months of suspension deferred because the attorney resolved most of the issues that led to the misconduct, i.e. refunding fees and resigning as counsel).

Disciplinary Sanctions

When a lawyer’s lack of diligence causes injury or potential injury to a client, the following sanctions are generally appropriate: disbarment, when the lawyer abandons the practice, knowingly fails to perform services for a client, or engages in a pattern of neglect with respect to client matters, and causes serious or potentially serious injury to a client; suspension, when the lawyer knowingly fails to perform services for a client or engages in a pattern of neglect, and causes injury or potential injury to a client [*1. The Louisiana Supreme Court has held that the "baseline sanction" for lack of diligence, neglect of matters and failure to communicate is "suspension from the practice of law." See In re Phelps, 827 So. 2d 1140, 1143 (La. 2002).*]; reprimand, when the lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client; and admonition, when the lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client. See ABA Stds. for Imposing Lawyer Sanctions std. 4.4 (1992).  However, in extreme cases “involving numerous instances of neglect, failure to communicate with clients, and failure to cooperate with the ODC,” the appropriate disciplinary sanctions may range from “lengthy suspensions to disbarment.”  In re Brancato, 932 So. 2d 651, 659 (La. 2006) (disbarring a criminal defense attorney for accepting representation of clients, performing minimal legal work, failing to communicate with clients, and ultimately abandoning legal matters and his clients, several of whom were incarcerated).

Notes

^*This page was updated on June 29, 2010.

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