May a lawyer decline to approve a proposed form of judgment to delay its entry, and may he object to a form he concedes is proper?

Plain-English summary

After a civil decision for the plaintiff, the court directed plaintiff's counsel to prepare a form of judgment and submit it to the defendant's lawyer for approval as to form. The defendant's lawyer agreed the form complied with the decision, but was aware of another pending appeal whose ruling could justify reconsideration or reversal. Because entry of judgment would start the clock on a new-trial motion and an appeal, the client wanted to delay entry until the other appeal was decided and instructed the lawyer accordingly. The lawyer asked whether he could decline to approve the form, and whether he could object to it.

The committee answered the first question "yes" for two reasons. Under ER 3.2, which directs reasonable efforts to expedite litigation "consistent with the interests of the client," the client's interests justified declining approval, and Rule 58(a) of the civil rules gave the plaintiff a means to pursue entry despite the defense lawyer's inaction; even the Comment to ER 3.2 proscribes only delay that is "merely" for frustration and allows delay with "some substantial purpose other than delay." Second, the committee reasoned that taking advantage of time limits the rules provide is not an ethical violation, comparing it to using the full time allowed to answer a complaint or respond to discovery; a lawyer is not obliged to take affirmative steps to shorten the time in which relief may be entered against his client.

The committee answered the second question "no." Because the submitted judgment was proper as to form, an objection on that ground would be a false statement violating ER 3.3(a)(1) and might also violate Rule 11(a) of the civil rules, the latter being a legal question outside the committee's jurisdiction.

Currency note

This opinion was issued in 1990, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer refuse to approve a form of judgment in order to delay its entry?

A: Under this opinion, yes. The committee concluded that declining to approve the form is permissible under ER 3.2 where it serves the client's interests, particularly because the opposing party retains another route to entry under the civil rules.

Q: Is delaying entry of judgment improper delay?

A: Not here. The committee reasoned that taking advantage of time limits the rules provide is not proscribed "delay," and a lawyer need not take affirmative steps to shorten the time in which relief may be entered against his client.

Q: Can the lawyer object to the form of the judgment to accomplish the delay?

A: No. Because the lawyer conceded the form was proper, the committee held that objecting on that ground would be a false statement to the tribunal in violation of ER 3.3(a)(1).

Background and rules framework

The opinion interprets Arizona ER 3.2 (Model Rule 3.2, expediting litigation, and its Comment distinguishing improper delay from delay with a substantial purpose) and ER 3.3 (Model Rule 3.3, candor toward the tribunal, specifically ER 3.3(a)(1) barring a knowing false statement of fact). It references Rules 58(a) and 11(a) of the Arizona Rules of Civil Procedure.

Citations and references

Rules of Professional Conduct:

• MR 3.2 / ER 3.2 (expediting litigation)
• MR 3.3 / ER 3.3 (candor toward the tribunal; ER 3.3(a)(1) false statement of fact)

Rules of Civil Procedure:

• Ariz. R. Civ. P. 58(a) (entry of judgment)
• Ariz. R. Civ. P. 11(a) (certification by signing)

See also

• AZ Ethics Op. 90-10: Excessive Public Defender Caseloads
• AZ Ethics Op. 87-22: Scope, Confidentiality, and Truthfulness

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=611

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

11/1990

Delaying approval of proposed written form of judgment in light of another pending case, the ruling of which could justify re-consideration or reversal of court's decision in instant case.

FACTS

The inquiring attorney represents a defendant in a civil action. The court has rendered its decision for the plaintiff and has directed plaintiff's attorney to prepare a form of judgment and submit it to defendant's attorney for approval as to form. Plaintiff's attorney has done so by a form of judgment which defendant's attorney acknowledges complies fully with the court's decision.

Defendant's attorney is aware of another pending case in which the ruling on appeal, when rendered, could justify reconsideration or reversal of the court's decision in this case. Defendant and his attorney understand that, once judgment is entered in this case, the times begin to run on a motion for new trial and on an appeal. Defendant would like to avoid having to pay fees to move for a new trial or to appeal until after there is a ruling on the appeal in the other case, and he has instructed the inquiring attorney to delay entry of judgment.

QUESTIONS

1. May defendant's attorney ethically decline to approve the proposed judgment as to form so that judgment could be entered at once?

2. May defendant's attorney ethically object to the form of the proposed judgment?

ETHICAL RULES CITED

ER 3.2. Expediting Litigation

Comment

Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

ER 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

OPINION

The answer to the first question is "yes," for essentially two reasons. The first is based on ER 3.2 The rule directs a lawyer to make "reasonable efforts to expedite litigation consistent with the interests of the client." Here, the interests of the client appear to justify the attorney's declining to approve the proposed judgment as to form so that judgment could be entered at once. Rule 58(a), 16 A.R.S. Rules of Civil Procedure, provides a means for the plaintiff to pursue his judgment despite the inaction of defendant's attorney. Even the Comment to ER 3.2, which seems to expand the rule as to delay, proscribes delay which is "merely" for the purpose of frustrating the plaintiff, and appears to approve delay for "some substantial purpose other than delay."

The second reason is that the committee does not believe that a lawyer commits an ethical violation if he takes advantage of time limits provided for in the Rules. A defendant may withhold answering a complaint for 20 days, and a party may withhold responding to discovery for the period of time prescribed in the Rules. In our view, such "withholding" does not become proscribed "delay" even if the party were ready to answer the complaint or reply to the discovery prior to expiration of the prescribed time limits. Likewise, we do not believe that an attorney is obligated to take affirmative steps to shorten the time within which relief may be awarded against his client.

We differentiate the first question from the second which we answer "no" because, as the facts submitted to us are stated, the judgment is proper as to form, and any objection on that ground would constitute a violation of ER 3.3(a)(1) and might constitute a violation of Rule 11(a), 16 A.R.S. Rules of Civil Procedure, this being a question of law outside our jurisdiction.

©State Bar of Arizona 1990