May a lawyer phone opposing counsel to remind them to file an overdue answer instead of moving for default, and does the client have to consent?

Plain-English summary

The opinion addressed a plaintiff's lawyer whose opposing counsel, known to be prompt and professional, had let the 30-day answer deadline pass without filing. The question was whether the lawyer may call to remind opposing counsel to file or must instead proceed to obtain an entry of default.

The opinion concluded that a lawyer may contact an opposing lawyer who missed a filing deadline to remind the lawyer of the error and give a last opportunity to file, and that doing so is not unethical but illustrates the professional courtesy that should be encouraged among members of the bar. It cited Rule 7.1(a)(1), under which a lawyer does not violate the duty of zealous representation by avoiding offensive tactics or treating others with courtesy and consideration, and Rule 7.1(b)(1), which authorizes a lawyer, where permissible, to exercise professional judgment to waive or assert a right of the client. Citing the Comment to Rule 7.1 that a lawyer is not required to pursue objectives or means simply because the client wishes it, the opinion concluded the rule does not require the client's consent before notifying opposing counsel. At the same time, the opinion concluded a lawyer is not ethically required to give notice; in some situations, such as where opposing counsel is known to procrastinate or where notice would materially prejudice the client's interests, the lawyer may determine that proceeding to default or another remedy is the appropriate tactic.

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 Treat this page as historical context, not current guidance.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: Can a North Carolina lawyer warn opposing counsel about an overdue pleading instead of taking default?

A: Yes. The opinion concluded the lawyer may remind opposing counsel of the error and give a last chance to file, and that this professional courtesy is not unethical.

Q: Does the lawyer need the client's consent first?

A: No. The opinion concluded that, under Rule 7.1(b)(1) and the Comment to Rule 7.1, the rule does not require the client's consent before notifying opposing counsel.

Q: Is the lawyer ever required to give that notice?

A: No. The opinion concluded a lawyer is not ethically required to notify, and may proceed to default or another remedy where opposing counsel is known to delay or where notice would materially prejudice the client.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.1, the provision on the scope of representation and the lawyer's professional judgment, which corresponds to Model Rules 1.2 and 1.3. Rule 7.1(a)(1) preserves zealous representation while permitting courtesy and consideration, and Rule 7.1(b)(1) lets a lawyer exercise professional judgment to waive or assert a client's right where permissible.

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation; allocation of authority)
• MR 1.3 (diligence)
• North Carolina Rule 7.1(a)(1), Rule 7.1(b)(1)

See also

• NC Ethics Op. RPC 214: sending a questionnaire to prospective jurors
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-212/

Original opinion text

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

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.