Must a lawyer grant opposing counsel's request for an extension of time to answer, or can the lawyer move for default?

Plain-English summary

Opinion E-84-2 arose from an action in which only one of three defendants answered within the 20-day period; the other two did not retain counsel until the day after the deadline. Opposing counsel requested an extension, and the attorney was concerned that granting it would not serve the client's best interest. The question was whether it would be proper to grant the extension.

The committee concluded that an attorney may legally refuse to grant an extension and move for a default judgment at the expiration of the 20-day period (Wis. Stat. sec. 806.02(3)). However, the former Code provided that a lawyer should accede to reasonable requests regarding court proceedings, settings, continuances, and waiver of procedural formalities (SCR 20.34(3)(t)). Because one defendant had answered within the period, making litigation a definite possibility, the committee viewed opposing counsel's request as not appearing unreasonable. Even so, the committee stressed that the attorney must consult with the client before making any decision that may prejudice the client's rights (SCR 20.34(2)(d); see also SCR 20.34(2)(f)). The committee added that the Code directs a lawyer to follow local customs of courtesy and practice, so if the local custom is to grant extensions in similar circumstances, it may be proper to do so; in all instances, the attorney must consult the client before deciding.

Currency note

This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The allocation of authority between lawyer and client and the duty to consult are now governed by SCR 20:1.2 and 20:1.4 / Model Rules 1.2 and 1.4, and expediting litigation by SCR 20:3.2 / Model Rule 3.2. 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 Treat this page as historical context, not current guidance.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 opposing counsel's request for an extension and move for default?

A: The committee concluded a lawyer may legally do so at the expiration of the answer period, but the Code directs the lawyer to accede to reasonable procedural requests.

Q: Was the request in this case reasonable?

A: The committee concluded the request did not appear unreasonable, given that one defendant had already answered and litigation was a definite possibility.

Q: Who decides whether to grant the extension?

A: The committee stressed the attorney must consult the client before making any decision that may prejudice the client's rights.

Background and rules framework

The opinion interpreted the former Code's directions to accede to reasonable procedural requests and follow local custom (SCR 20.34(3)(t)) and to consult the client before decisions that may prejudice the client (SCR 20.34(2)(d), (f)). These subjects are now addressed by SCR 20:1.2 and 20:1.4 / Model Rules 1.2 and 1.4 (scope and communication) and SCR 20:3.2 / Model Rule 3.2 (expediting litigation).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.34(3)(t) / Model Rule 3.2 (acceding to reasonable requests; local custom) (former Code provision)
• Wis. SCR 20.34(2)(d), (f) / Model Rules 1.2, 1.4 (consulting the client) (former Code provisions)

Statutes:

• Wis. Stat. sec. 806.02(3) (default judgment)

See also

• WI Ethics Op. E-84-7: Duty of a Lawyer to Inform the Court of Error
• WI Ethics Op. E-94-1: Duty to Disclose Adverse Authority
• WI Ethics Op. E-96-2: Responsibilities When a Client Cannot Be Located

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-2.pdf