When you meet a lawyer for the first time, what should he or she assume about the way you will conduct yourself as a lawyer? Should they expect professional courtesy from you? Do you know the standard of conduct expected of the lawyers in your local bar association? Should that standard of conduct differ throughout the state? Do you feel a certain sense of camaraderie and pride for other attorneys when you start a new case, knowing that you have both been through the rigors of law school, the bar examination, and similar cases? Certainly veterans of wars and survivors of natural disasters feel a common bond because of their similar experiences. Should lawyers be kindred spirits who have a genuine respect for each other and whose common goals are truth and equal justice for all?
I hope you can answer the above questions in a positive way and that you feel good about our profession. But practicing law is never easy and sooner or later each of us will be faced with a difficult professionalism and/or ethical problem. Deciding whether or not to take a default pursuant to Rule 55 of the North Carolina Rules of Civil Procedure is a difficult decision for most lawyers. How do you best resolve the conflict between the interests of the client, complying with the rule of law, and extending professional courtesy to another attorney? To illustrate this dilemma, consider these facts:
A former client who is involved in a conflict with his neighbor contacts you. The neighbor has extended his garden across the property line and is ignoring all requests to stay off of your client's land. Your client refuses to try to mediate the matter or to resolve it in any way short of a lawsuit. You file suit and have the sheriff serve the complaint on the neighbor. The next morning the neighbor yells to your client that he has called a lawyer with whom you have had difficulty in the past. The neighbor goes to the law office of the lawyer that we will call Ms. Jones, with the complaint in hand. Ms. Jones is at the courthouse so the neighbor leaves the complaint with the receptionist. Thirty (30) days pass and you have heard nothing from Lawyer Jones. What should you do?
There are several options: first, you can wait another thirty (30) days in hopes that an answer will be filed; second, you could file an entry of default; third, you could talk with your client and explain all of the options to him and then do what he instructs; or, finally, you could call Lawyer Jones and ask whether she is representing the neighbor and if she intends to file an answer.
Rule 55, of the North Carolina Rules of Civil Procedure, provides for the Entry of Default and a Judgment of Default. There are times when this rule should be invoked. But I am concerned that many lawyers today think it is their duty to take a default rather than granting an extension of time, and if necessary, trying the case on the merits. In Alopari v. O'Leary
, 154 F. Supp. 78 (E.D. Pa. 1957), cited in Whaley v. Rhodes
, 10 N.C. App. at 111, 177 S.E.2d 735 (1970), the court stated:
"...A motion to set aside a default is addressed to the discretion
of the court. Any doubt should be resolved in favor of setting aside
defaults so that the cases may be decided on their merits. In view of the
lack of any substantial prejudice to plaintiff, the claim of a meritorious
defense, and the absence of any gross neglect on the part of defendant,
the default will be set aside."
Some lawyers would argue that the requirement to be a "zealous advocate" as set forth in Section 0.1(2) and (12) of the Preamble to the Revised Rules of Professional Conduct, would require the taking of a default in the above hypothetical set of facts. This term has been over used in trying to excuse or to establish a reason for using Rambo-like tactics in the practice of law. The principles of professionalism require lawyers to be competent and to always represent their clients zealously. But "winning at all costs" should not be what we are about and we should be sure that our clients understand this.
Rule 1.2, Scope of Representation, defines what is expected of the attorney during the course of the relationship with the client. Comment #1 to this rule states, "The client has the ultimate authority to determine the purposes to be served by legal representation within the limits imposed by law and the lawyer's professional obligations." However, this comment further advises, "Lawyers are encouraged to treat opposing counsel with courtesy and to cooperate with opposing counsel when it will not prevent or unduly hinder the pursuit of the objective of the representation. To this end, a lawyer may waive a right or fail to assert a position of a client without first obtaining the client's consent. For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client's consent."
The client should understand that you will do your best to ensure that justice is done and that you will present the client's case in the best possible manner according to the rule of law. Taking a default at the first opportunity is not required of you as a lawyer.
RPC 212 (adopted on July 21, 1995) states: "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." This form of professional courtesy was taught and promulgated by Dean Carroll Weathers in my ethics class at Wake Forest School of Law back in the early Seventies. I can hear him asking the members of the class, "You would not want to win on a technicality, would you? Your objective should be to prevail on the merits." I am confident that this same approach is taken in all of the law schools in North Carolina. Why then do we see lawyers struggling with the default issue?
If the legal profession is to remain a high calling, we need to work together to seek justice and to serve the common good. If a default is taken in the above scenario, time and money will be spent trying to get a judge to set aside the default. The relationship between the lawyers and the relationship between the neighbors will be permanently impaired. Rule 1.4 Communication, requires that a lawyer keep his client reasonably informed about the status of the case. Because of the nature of a default, the lawyer may want to discuss the matter with the client. If the client insists on the filing of a motion for an entry of default, and that decision is contrary to the attorney's position, the attorney should consider his or her option to withdraw.
If you ask lawyers why there has been an increase in the entry of defaults, you may hear some of the following: a) local bar associations are much larger and impersonal today; b) lawyers have not dealt with each other before and do not expect to deal with opposing lawyers again; c) "I took a default in this case because a default was taken against me in another case and I assumed that was the way law is practiced here"; and d) lawyers do not care about civility and professionalism. However, lawyers in small towns may be more reluctant to take a default because they are going to see the other lawyer every week, either in the courthouse, at a high school ballgame, in the grocery store, or at church. Neither the size of the bar nor your familiarity with opposing counsel should decide this issue.
INSTEAD OF TAKING A DEFAULT, CALL LAWYER JONES AND TALK ABOUT THE PROBLEM. Use your position as a counselor to help these neighbors solve their problem and become friends again. If the neighbor absolutely has to have the property for his garden, maybe he would like to purchase the property; maybe an easement would solve the problem; or maybe he can use the land in exchange for giving some vegetables or flowers to your client with a written waiver of a claim to fee title by adverse possession. If you cannot work out the problem with Lawyer Jones, give her ten (10) additional days to file her Answer and then proceed with litigation. Even though you may have had problems with the opposing attorney in the past, take the high road towards professionalism and civility and use the entry of a default as a last resort. Finally, as a law student friend of mine suggested, consider establishing a suspense reminder for your office two days prior to the 30-day filing date, and if you have not received an Answer, call the opposing attorney's office, as a courtesy.