The Ethics and Consequences of Delay Tactics in the Legal System

As an expert in the legal field, I have seen firsthand the use of delay tactics by lawyers in various cases. These tactics are often employed when lawyers prefer to maintain the status quo or impose costs on the opposing party to force them into an agreement. In litigation, delay is a common defense tactic, especially in cases involving insurance coverage and bad faith claims. The longer an insurer can hold onto their benefits, the more money they can make. Delay tactics begin as soon as a lawsuit is filed.

Insurance defendants will often request an extended extension to file a response plea and then object to the complaint. According to the Rules of Professional Conduct, lawyers are expected to provide timely client service and must inform their clients of any potential delays and their options, including hiring a new lawyer (Rule 3.1-2, Comment 1). However, some lawyers may use delay tactics to make their clients believe that they are the only ones capable of handling their case. As someone who deals with lawyers on a daily basis, I can attest that most of them are compassionate individuals who genuinely want to help their clients seek justice. However, delay tactics can make it difficult for justice to be served, especially since evidence tends to be less reliable over time. In one case, a lawyer was suspended for 45 days due to unforgivable delays and misrepresentations made to their clients about these delays.

In another instance, a delay in preparing a lease or closing a property sale can have serious consequences for customers. Yet, some defense attorneys may have busy schedules and prioritize certain cases over others. In California, lawyers for plaintiffs had to explain a defense attorney's misinterpretation of the law until 2002 when the state's Supreme Court abolished it. In civil or family matters, delay can put pressure on plaintiffs to settle for less than what they are rightfully owed. This is especially problematic for those who may not have other sources of income once their case is resolved.

From a criminal standpoint, the system's delay can incentivize guilty pleas, as bringing every case to trial would only add to the already overwhelming backlog. As regulators, we must consider whether lawyers should be allowed to use tactics that encourage delay. While there are certainly inefficiencies and problems within the judicial system, I believe that lawyers who use delay tactics, particularly in criminal trials, are the most affected. Even minor infractions have resulted in disciplinary proceedings against Florida attorneys. As a member of various legal associations, including the San Francisco Trial Lawyers Association and the American Association for Justice, I am well aware of the ethical implications of delay tactics. It is not just a matter of legal ethics, but also a systemic and public policy issue that needs to be addressed.

Ernest Carsten
Ernest Carsten

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