When opposing counsel misses a calendar call after a notice goes to an old address, must the other lawyer confirm the notice was received before asking the court to set an early trial date?

Plain-English summary

The opinion addressed a defense lawyer who missed a civil district court calendar call because the notice of hearing went to an old address after his address changed. Opposing counsel asked the court to set the matter for trial at the earliest possible date, and the case was set two days later; neither the judge nor opposing counsel asked whether the absent lawyer had received notice or had an emergency. The first inquiry asked whether, before requesting the early trial setting, opposing counsel must verify that the notice was actually received and that no emergency prevented the appearance.

The opinion concluded that opposing counsel is not required to verify that the notice was received. It cited Rule 7.1(a)(1), under which a lawyer does not violate the duty of zealous representation by acceding to reasonable requests, being punctual, avoiding offensive tactics, or treating others with courtesy and consideration. The opinion read avoiding offensive tactics and treating others with courtesy to include not taking advantage of opposing counsel's failure to respond to a notice of hearing where there had been no prior lack of diligence or responsiveness. Under those circumstances, as a matter of professionalism, opposing counsel should make a reasonable effort to ascertain the absent lawyer's whereabouts or the reason for the absence before asking the judge to schedule the hearing at the earliest possible date. The opinion declined to address the judge's duty, noting judges are governed by the Code of Judicial Conduct and the Judicial Standards Commission, and concluded other lawyers present at the calendar call had no such responsibility, though as a matter of professionalism lawyers are encouraged to treat one another with courtesy and to assist in meeting the duty of competent representation.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar'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 Treat this page as historical context, not current guidance.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: Must a lawyer confirm opposing counsel received a hearing notice before seeking an early trial date?

A: Not as a strict requirement. The opinion concluded the lawyer is not required to verify receipt, but professionalism urges a reasonable effort to learn the absent lawyer's whereabouts or reason for absence first.

Q: Why does professionalism call for that effort?

A: To avoid taking unfair advantage. The opinion read Rule 7.1(a)(1)'s direction to avoid offensive tactics to include not exploiting an opposing lawyer's missed notice where the lawyer had not previously been dilatory.

Q: Did the opinion address the judge's or other lawyers' duties?

A: It declined as to the judge, noting judges fall under the Code of Judicial Conduct, and concluded other lawyers at the calendar call had no responsibility, while encouraging courtesy as a matter of professionalism.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.1(a)(1), the professionalism provision allowing courtesy and consideration without offending the duty of zealous representation, which corresponds to Model Rule 3.2 on expediting litigation and Model Rule 1.3 on diligence. The opinion framed the question as one of professionalism rather than a strict disciplinary requirement.

Citations and references

Rules of Professional Conduct:

• MR 3.2 (expediting litigation)
• MR 1.3 (diligence)
• North Carolina Rule 7.1(a)(1)

See also

• NC Ethics Op. RPC 212: notifying opposing counsel before seeking default
• NC Ethics Op. RPC 214: sending a questionnaire to prospective jurors

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-208/

Original opinion text

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

Inquiry #1:

Attorney A, who represents the defendant in a civil matter, did not receive the notice of hearing from opposing counsel, Attorney X, because Attorney A's address had changed. At the civil district court calendar call for the first day of the session, when hearing dates are set, Attorney A did not appear nor did his client. Attorney X asked the court to set the matter for trial at the earliest possible date. The case was set for trial two days later. Neither the judge nor Attorney X inquired as to whether Attorney A had received the notice of hearing nor did they attempt to ascertain whether Attorney A was prevented from appearing at the calendar call by an emergency or otherwise. Attorney L, who was at the calendar call on an unrelated matter and who is not associated with either Attorney A or Attorney X, subsequently advised Attorney A of the trial date. Under these circumstances, before asking the court to set the case for trial, must Attorney X verify that the notice of hearing was actually received and that there was no emergency or other problem preventing the appearance of Attorney A or his client at the calendar call?

Opinion #1:

No, Attorney X is not required to verify that the notice of hearing was actually received by the opposing lawyer. However, Rule 7.1(a)(1) of the Rules of Professional Conduct provides that a lawyer does not violate the duty to zealously represent a client

...by acceding to reasonable requests by opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

Avoiding offensive tactics and treating others with courtesy includes not taking advantage of the opposing party or the opposing counsel's failure to respond to a notice of hearing when there has been no prior lack of diligence or responsiveness on the part of the opposing counsel. Under these circumstances, as a matter of professionalism, Attorney X should make a reasonable effort to ascertain Attorney A's whereabouts or the reason for his absence before asking the judge to schedule the hearing at the earliest possible date.

Inquiry #2:

Does the court have a duty to verify that Attorney A has received notice of the hearing?

Opinion #2:

Judges are subject to the Code of Judicial Conduct and the regulation of the Judicial Standards Commission. Therefore, no opinion is expressed to the ethical duty of a judge in this situation.

Inquiry #3:

Do the other lawyers at the calendar call have a responsibility to verify that Attorney A has received notice of the hearing or that there was no emergency or other problem preventing Attorney A's appearance at the hearing?

Opinion #3:

No. However, as a matter of professionalism, lawyers are encouraged to treat other practitioners with courtesy and to assist other practitioners in meeting the duty of competent representation.