Posted on October 16, 2018 in In The News
Continuance Requests: Where Do We Go From Here?
By Brian L. Tannebaum
Recently, Florida’s legal profession had the opportunity to weigh with its (very different) thoughts on a lawyer objecting to a continuance requested by a pregnant lawyer. Although that was an important moment for us to pause and evaluate our discourse with opposing counsel, this article is not a debate about that case. It’s about where we can go from here.
The quick, simple response is: “He just shouldn’t have objected.” But it’s not that quick, and it’s not that simple. A motion was filed, it was reviewed, and a response was thought out – maybe not well-thought out as we’ve seen by the response(s).
As an ethics lawyer, I have to start with the obvious: refusing to agree to an extension of time is not unethical. I often have discussions with lawyers about the difference between an ethics violation and business acumen. Or, in other words, the difference between being a lawyer and being a human being. As an example, there may not be a conflict, ethically, but there may be a personal conflict, or the extension will affect the lawyer’s business. The same goes for the difference between an ethics violation and your reputation. Something may be ethical, but not in your best interest. Once you lose the trust of judges and lawyers, you can be as ethical as you want, it won’t matter. Once you’re seen as a lawyer who puts “winning” above collegiality, that will be your legacy–regardless of whether you win.
When I was a young lawyer, a judge told me to “never object to a lawyer’s vacation, or event with their kid.” Agreeing to a continuance is not just something to do for opposing counsel–it’s something to do for you and your future request for the same courtesy (and, truth be told, I’ve been in situations where my agreement didn’t result in the same courtesy from opposing counsel).
Cases are not just facts and evidence; they involve human beings with personal and professional issues. I’ve needed enough continuances in my career to know that my agreement today (hopefully) comes back to me when I need one.
And I understand that there are lawyers who chronically seek delay. I understand that clients have demands to resolve their cases–often quicker than the system permits. I understand that lawyers default to “my client won’t agree.”
But I insist that I practice law my way–not the way my opposing counsel operates. I advise my clients that reasonable and necessary extensions of time are part of the process. If I have a concern about a position I’m going to take, I run it by a few people. My concern is not simply whether it’s ethical pursuant to the Rules of Professional Conduct, but whether it’s the right thing to do. It’s not enough to hash it out with the team working on–and possibly emotionally invested in–the case; the better move is to run it by someone not involved.
When it comes to continuances, but for a unique situation, cases can be heard on another day. A case is not a career, and lawyers who fail to understand that risk losing sight of the big picture.
Being reasonable and human is not the enemy of zealous advocacy.
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Brian L. Tannebaum is General Counsel and Chair of the Ethics, Professional Responsibility, and White Collar Defense Group at Bast Amron, LLP in Miami. He represents lawyers before The Florida Bar and in state and federal courts.