I attended a CLE seminar on “Civility in Practice” at my state bar’s annual meeting. One issue that the panel of judges and attorneys discussed was what to do about attorneys who are late or no-shows up for hearings, depositions, or conferences.
One attorney panelist said that because he sometimes has been late, he usually does not make a big deal of another attorney being late or even a “no-show.” Very civil of him, indeed. And then he said something that really surprised me. He said that he usually just absorbs the loss as he does not bill his client for the extra time he had to wait on the other attorney or for the other attorney’s “no show.” Now that is not only very civil, but also very unusual!
I often see in the legal bills where attorneys bill to attend a hearing, conference, or deposition where the other attorney (or the other attorney’s client) is a no show. The question presented is whether it is ethical to bill your client for this without first asking that sanctions be assessed against the opposing party to at least recover the amount of fees being billed to the client. I think that this impacts RPC 1.1 (Competence). Specifically, is the attorney providing “competent” representation in this instance?
Many attorneys will just flippantly say that courts would not grant sanctions in such situations. But that is just an overly broad assumption that does would not apply in all situations – especially where the opposing attorney is a no-show to a court hearing which has also inconvenienced the court.
I am not suggesting that spending hours to prepare a motion and brief. What I am suggesting is that is is more than appropriate to ask the court for sanctions in the presence of the court at the time the no-show occurs. In fact, I would state that before attorneys can ethically bill their time, attorneys at least needs to make the effort to present the issue to the court.
In presenting this issue to a court, the attorney is not engaging in incivility by any means. And it is should not be an issue of whether or not the attorney had a good excuse for being a no-show. The issue should be that there has been a loss (time being billed to a client) as a result of the no-show and if anyone needs to absorb this loss, fundamental fairness dictates that it should be the no-show counsel.
Where an attorney does not press for sanctions, it generally is for two reasons: the attorney does not want jeopardize a working relationship with the other attorney in other cases or the attorney believes she may be the one who is late in some other case and does not want to set herself up for sanctions in a future case. In both of those instances, though, the attorney clearly is putting her own interests ahead of the client’s interests. Thus, in both of those situations, the attorney should just absorb the loss as a “cost of doing business” and ethically should not bill the client for this lost time.
[For more on incivility in the practice of law and what I believe to be its root causes, please see my prior post, “On ‘Zealousness’ and ‘Reasonableness’.”]