If you know a party is represented, must you notify opposing counsel before you seek an entry of default and default judgment against his or her client?
Rule 1.2(a)(3) of the North Carolina Rules of Professional Conduct provides that “[i]n the representation of a client, a lawyer may exercise his or her professional judgment to waive or fail to assert a right or position of the client.” The comment to the rule explains:
Lawyers are encouraged to treat opposing counsel with courtesy and to cooperate with opposing counsel when it will not prevent or unduly hinder pursuit of the objective of the representation. To this end, a lawyer may waive a right or fail to assert a position of a client without first obtaining the client’s consent. For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.
See Comment to Rule 1.2(a)(3).
So what are an attorney’s obligations when the attorney knows a defaulting party is represented by counsel and that counsel has failed to file an answer to a complaint? Should the attorney notify opposing counsel of his or her intention to seek an entry of default and default judgment?
Rule 1.2(a)(3) provides that this decision lies within the attorney’s discretion, and that he or she may—without his or her client’s consent—provide opposing counsel advanced notice. Alerting opposing counsel to this type of procedural deficiency, and permitting him or her to correct it, epitomizes professional courtesy. Still, many attorneys may zealously purse their client’s interests by forgoing such notice, which is entirely permissible under the North Carolina Rules of Civil Procedure and the Rules of Professional Conduct.
However, providing this type of notice is not a matter of professional courtesy in Mecklenburg County: it is a requirement. The 26th Judicial District (Mecklenburg County) has enacted local rules which require an attorney to give opposing counsel advance notice: General Civil Rule 16.6 for the Superior Court Division requires an attorney to provide ten (10) days’ written notice to opposing counsel (where it is known that the opposing party is represented) before seeking entry of default. General Civil Rule 15.4 for the District Court Division takes the requirement a few steps further, stating:
The 10-calendar-day notice shall be given immediately after the expiration period for filing the answer and no later than five business days after the expiration period. A violation of this rule will cause the case to be identified as delinquent and may subject the case to dismissal at the discretion of the Chief District Court Judge or presiding judge.
Rule 15.4, General Civil Rules 26th Judicial District, District Court Division. That is, if the attorney knows that a defaulting party is represented by counsel, and fails to provide written notice of his or her intention to seek entry of default (and do so quickly), the case is subject to dismissal. This is a steep penalty for the zealous advocate who failed to check the local rules before seeking entry of default.
While it is always good practice to extend professional courtesies where we can, it is crucially important to read the local rules of the district where our cases are pending.