Practice points with Mark Scruggs: Get It Outta There!

Don’t let affirmative defenses that you deem meritless remain in the Answer and a part of the case. If you do, you may be creating a conflict of interest between you and your client.

Rule 1.7 of the North Carolina Rules of Professional Conduct states in relevant part, “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) the representation of one or more clients may be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer. (emphasis added.)

Let’s say you file a complaint on the eve of the expiration of the statute of limitations. You attempt service on the defendant via the Sheriff’s office at what you believe to be the defendant’s home address. You get a return showing that service was made on someone other than the defendant, but arguably someone of suitable age and discretion residing with the defendant at his dwelling house or usual place of abode. Or let’s say you attempt service via certified mail and get a “green card” back signed by someone other than the defendant.  You think you’ve probably got good service, but defense counsel has indicated some doubt about that and has included in the answer defenses as to service of process and personal jurisdiction.

Don’t brush those defenses aside with the thought that “oh, they’re just boilerplate defenses.” Initiate discovery on those issues. Do what you can to either confirm that you have good service or that you don’t. If you are convinced that you do, ask opposing counsel to withdraw the defense. If he declines, then calendar the matter for hearing yourself and get the issue resolved.

You don’t want to worry about whether the advice you are giving your client regarding settlement, for example, is colored by your personal interest in not getting sued! You would certainly not knowingly let that happen, but if there’s a potential mistake that could generate a malpractice claim, how can one really be sure? Best to Get It Outta There!