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To Be Continued… The Ethics of Appearing Solely to Secure a Continuance

Posted By Administration, Monday, April 15, 2019

By: Emily Hurtt, Bagwell Holt Smith P.A.

If you haven’t done it, then you’ve probably thought about doing it: filing a limited appearance for the sole purpose of securing a continuance. Picture the scenario where a potential client calls your office and asks for your first available consultation—frantic, rushed—saying that they have a hearing in less than a week. Do you take the case? What if your schedule for the week is packed, but it’s a referral from a good friend, or a family member? Perhaps the better article would be about all the countless times this has happened to some of us and all the ways we’ve handled the situation.

I’m mostly interested in the scenario where the attorney decides to take the case with no intention of trying it on the merits, but rather for the sole purpose of securing the client a continuance. When this happens, usually the reason a continuance is needed is because the client needs time to get the money together to hire an attorney. Sometimes it’s because a client legitimately cannot appear on that date. If one of us were to help that client out, what are our ethical obligations surrounding such an arrangement?

On one hand, there doesn’t seem to be a clear rule against this, but we have obligations to our clients to ensure they are fully aware of the limited scope of our representation.  Rule 1.2(c) of the North Carolina Rules of Professional Conduct states a lawyer may limit the scope of her representation so long as the limitation is reasonable under the circumstances.  Rules 1.2 and 1.4 also require the lawyer to adequately communicate with her client to ensure the client fully understands and agrees to the limited nature of the representation.  On the other hand, practical considerations should potentially dissuade attorneys from entering a limited appearance for this purpose. For example, one big problem is if the client already had a number of continuances and the question becomes one of willful delay; a potential violation of Rule 3.2. A bigger problem is if you show up to the hearing prepared only to ask for a continuance, and the judge denies your motion. In that circumstance, would you proceed with the hearing unprepared, or have your client proceed alone? 99 FEO 12 contemplates that a lawyer “covering” for another lawyer should nevertheless be sufficiently familiar with the case and prepared to provide competent representation if appearing before the court on behalf of the client.  I shudder to think of the situation where a judge denies the motion and deems you counsel of record in the matter, subject to all responsibilities that would ensue as counsel of record.

Although your client likely has a reasonable need for a continuance, such that you are willing to make the limited appearance, this last worst-case-scenario is at least something to think about. At the very least, should the inevitable request for help obtaining a continuance appear in our doorway, we have a responsibility to clearly communicate the nature and limited scope of our representation not just to the client but also the tribunal, including our lack of familiarity with the case.  Then again, perhaps we’re all better off having the client draft his own motion for continuance.

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