Notifying Opposing Counsel Prior to Seeking Default
Adopted: July 21, 1995
Opinion rules that a lawyer may contact an opposing lawyer who failed to file an answer on time in order to remind the other lawyer of the error and to give the other lawyer a last opportunity to file the pleading.
Inquiry:
Attorney A represents the plaintiff in a civil action. Attorney A believes that the defendant is represented by Attorney X who she knows to be prompt, courteous, and professional. Thirty days have expired since the complaint in the action was filed and no answer has been filed for the defendant. May Attorney A call Attorney X to remind him to file the answer or must Attorney A proceed with obtaining an entry of default against the defendant?
Opinion:
A lawyer may contact an opposing lawyer who failed to file a pleading on time in order to remind the other lawyer of his error and to give the other lawyer a last opportunity to file the pleading. Such conduct is not unethical but rather illustrates the level of professional courtesy and consideration that should be encouraged among the members of the bar. Rule 7.1(a)(1) of the Rules of Professional Conduct provides that a lawyer does not violate the duty to represent a client zealously "by avoiding offensive tactics or by treating with courtesy and consideration all persons involved in the legal process." Furthermore, Rule 7.1(b)(1) authorizes a lawyer "where permissible, [to] exercise his or her professional judgment to waive or assert a right or position of the client." It is also observed in the Comment to Rule 7.1 that "...a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so...." Thus, the rule does not require the client's consent prior to notifying the opposing lawyer.
In many situations, professional courtesy urges notification to the other lawyer of the failure to file a pleading. However, a lawyer is not ethically required to do so. In some situations, for example where opposing counsel is known to procrastinate or delay or the interests of the client will be materially prejudiced by notifying opposing counsel, a lawyer may determine that the appropriate tactic is to proceed with obtaining an entry of default or other appropriate remedy.