Enforcement in Practice

Enforcement in Practice

Rule 3.2 imposes a duty that its own text qualifies: a lawyer must “make reasonable efforts to expedite litigation consistent with the interests of the client.”¹ That closing clause hands a lawyer accused of delay a ready answer: the client's interests called for it. A rule that names a concrete act leaves less room for that argument. Rule 4.2, for example, forbids communicating about the subject matter of the representation with anyone the lawyer knows to be represented by counsel in the matter, unless the other lawyer consents.² Rule 3.2 names no such act. It asks only whether the lawyer's efforts to move the case were reasonable, and it measures them against the client's interests. Other provisions attack delay tactics more directly.

Three neighboring conduct rules reach tactics that often accompany delay. Rule 3.1 bars bringing or defending a proceeding, or asserting or controverting an issue in it, without a basis in law and fact that is not frivolous. Rule 3.4(d) bars a frivolous discovery request and a failure to make a reasonably diligent effort to comply with a legally proper request from an opposing party. Rule 4.4(a) bars means that have no substantial purpose other than to embarrass, delay, or burden a third person.³ Unlike Rule 3.2, each of these rules says what the lawyer may not do.

Rule 11 supplies a sanctions tool aimed at papers presented to the court, and it covers delay carried out through filings. “Papering” an adversary through successive filings is a pattern from which a court can infer an improper purpose, even though some of the filings are non-frivolous. The frequency and timing of the filings supply the objective basis for that inference.⁴

Ben's conduct also shows where Rule 11 stops. It applies only to papers presented to the court, so it would not reach an oral misrepresentation or misbehavior in the courtroom. A court's inherent power to supervise and control its own proceedings fills part of that gap, because it applies to all litigation conduct, including oral representations and behavior in the courtroom. The two sources differ in trigger as well. Inherent power requires bad faith, while Rule 11 also reaches “good heart, empty head” conduct. The two overlap, and in practice most courts follow Rule 11 procedures in cases to which the rule applies.⁵

Discovery carries its own certification. Under Rule 26(g), an attorney's signature on a discovery document certifies that the request or response is not “interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”⁶ The signature also certifies that the request or response is not unreasonable, and sanctions, including attorney fees, are authorized for violations. The rule works by pressing every attorney to consider seriously the legitimacy of each discovery request and response before signing it.⁷ The next sections take up that certification, the sanctions that attach to it, and the limits that keep discovery proportional.

On an exam, keep two questions apart. First, does the conduct fall short of Rule 3.2? Routine continuances taken for counsel's convenience do, because a lawyer's preference for a lighter calendar is no client interest, and the rule asks for reasonable efforts to expedite consistent with the client's interests. Second, which mechanism is likely to reach the conduct? The procedural rules answer more directly than Rule 3.2 does. Rule 26(g) names unnecessary delay as an improper purpose, while Rule 11 and inherent power reach filings and other bad-faith conduct. A fact pattern whose only consequence is a judge's sanction can therefore still describe a breach of the duty to expedite.