Frequently Asked Questions

Why Are Deadlines Important?

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A recent study1 conducted by the ABA revealed that in 2011:

  • 1,427 claims resulted from a lawyer’s failure to file a document.
  • 1,958 claims alleged that a lawyer failed to calendar properly.
  • 3,116 claims arose from a failure to know or ascertain a deadline.
  • 1,056 claims asserted that a lawyer failed to react to his or her calendar.

1 See ABA Standing Committee on Lawyer’s Professional Liability, Profile of Legal Malpractice Claims: 2008-2011 11 (2012).

Deadlines: More than Statute of Limitations

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The risk of missing a deadline goes far beyond the statute of limitations. Lawyers are also responsible for complying with court-ordered deadlines, procedural deadlines, pre-law suit notice deadlines, and regulatory deadlines. Consequently, a lawyer should have excellent time management and calendar/docketing processes in place to avoid the dreaded missed deadline. Just as a remedial refresher, below is a list of various deadlines lawyers must keep in mind:

  • Statute of Limitations: Lawyers must comply with laws written by federal or state legislature that restrict the maximum amount of time in which a claim can validly be brought after an event occurs. Rules for tolling of the statutes are quite varied depending on the applicable jurisdiction, and are often case specific.
  • Court-Ordered Deadlines: During a lawsuit, the courts impose deadlines for certain actions that may result in case dismissal if missed, or sanctions.
  • Procedural Deadlines: Lawyers must adhere to the deadlines set forth in state or federal procedural rules.
  • Pre-Law-Suit Notice Deadlines: When suing a governmental entity, lawyers must take care to comply with deadlines that require notice to be given to the governmental agency within a certain time period before the law suit is filed.
  • Regulatory Deadlines: For matters involving regulation, a lawyer must follow regulatory deadlines, which carry the force of law as prescribed by a legislative authority.
  • Contract Deadlines: Breach of contract actions can be limited by provisions set forth in the contract, including imposition of deadlines and contractual statutes of limitations. These deadlines are almost always enforced by the courts.
  • Counting Rules: With respect to many deadlines imposed by law, jurisdictions often enact laws and regulations setting forth how to “count” the days. Some states begin counting the days to deadline upon the day a party receives notice, others begin counting the next day. Some jurisdiction have different counting rules for shorter time periods (for example, where a party has 10 days or less, only “business days” can be counted, not all days), or for computing deadlines where holidays and weekends intervene.

What Ethical Duties Involve Missed Deadlines?

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  1. Model Rule 1.1: Duty of Competency
    • Deadlines and Time Management: Is There Time For This Case?
      • Lawyers have a duty to provide competent representation to a client, which demands the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 1 In addition, the duty of competency specifically requires the “use of methods and procedures…of competent practitioners.”2 Accordingly, a lawyer must adhere to deadlines because these procedures are standard for competent practitioners.
    • A lawyer is more apt to miss a deadline if they do not have the requisite time available to prepare for it. Before taking on a matter, a prudent lawyer should assess whether their caseload allows them to dedicate the necessary preparation and study required for competent representation.3 Lawyers should also consider the nature of a matter.4 Major and complex issues will normally take more attention and preparation.5
    • Lawyers should consider referring or declining a matter when time is limited. This will avoid problems with missed deadlines and incompetency.6
    • Lawyers should review not just the laws, regulations, court rules and court orders imposing deadlines, but also the laws, regulations and rules that impose counting rules.  Also determine whether e-filing rules are different from regular filing rules given that shorter time frames and time cut-offs are often imposed for e-filing. Research case law to determine whether the deadlines have been modified by the courts.
  2. New Lawyers and Deadlines: Can New Lawyers Catch a Break?
    • New lawyers should be especially aware of deadlines because they are held to the same proficiency level as that of a general practitioner.7 No laxity is given to a beginner because it took him or her more time to prepare documents needed for a deadline.
    • As the competency rules explain, “a lawyer can provide adequate representation in a wholly novel field through necessary study,” and while this study often takes longer for a new lawyer than a seasoned lawyer, no additional time is provided by the deadlines.
  3. Model Rule 1.3: Duty of Diligence
    • Lawyers have an ethical duty to, “act with reasonable diligence and promptness in representing a client.”9   Additionally, the duty of diligence instructs a lawyer to regulate his or her workload in order to provide competent representation in every matter.10
    • A lawyer is required to pursue a case “despite opposition, obstructions or personal inconvenience to the lawyer,” making missed deadlines inexcusable in most circumstances.11
    • Further, part of the diligence rule specifically denounces missed deadlines, stating that, “[p]erhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed.”12

1 See MODEL RULES OF PROF’L CONDUCT R. 1.1(1983) (amended 2013).

2 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 5 (1983) (amended 2013).

3 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 1 (1983) (amended 2013).

4 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 5 (1983) (amended 2013).

5 Id.

6 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 1 (1983) (amended 2013).

7 Id.

8 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 2 (1983) (amended 2013) (emphasis added).

9 See MODEL RULES OF PROF’L CONDUCT R. 1.3 (1983) (amended 2013).

10 See MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 2 (1983) (amended 2013).

11 See MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 1 (1983) (amended 2013).

12 See MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 3 (1983) (amended 2013).

Are There Any Remedies for Missed Deadlines?

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Statute of Limitations Deadlines: Generally, lawsuits are subject to dismissal if filed after the statute of limitations period. However, some states provide ways to toll the statute of limitations for a certain period of time. Be sure to check your local jurisdiction’s tolling rules as well as relevant case law for more specific guidance. Tolling is sometimes allowed in unexpected situations such as if the client was absent from the jurisdiction for any time period, or the injury was undiscoverable or hidden from the plaintiff.

 

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Risk Management Best Practices Database Legal Statement

Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.