NJ: "Safe" Withdrawal: 90 days before the Statute of Limitations Runs
Fraser v. Bovino, 317 N.J.Super. 23 (App. Div. 1998)
Student Contributor: Lisa Larato
NJ Underlying Real Estate/Land Use Transaction
Facts: A deal for the sale of land fell through due to delays caused by challenges to the municipal approval of a condominium project. The real estate agent (Fraser) and the landowners (Genlaws) brought an action against the adjoining landowner (Defendant Bovino) who objected to the condominium project, his attorney, and others involved in ruining the deal. Fraser asserts that Bovino’s attorney (Allen) committed malpractice and acted unethically. The Genlaws also filed a claim against their attorneys Martini and Blessing who had been retained to prosecute their action against Bovino and his attorney.
The only claims still viable for the Genlaws were those which fell under the six year statute of limitations. It was undisputed that the attorneys returned the Genlaws’ file to them a few weeks before this statute of limitations expired, on January 28, 1997. The complaint, however, was not filed until April 25, 1997.
The Superior Court, Law Division, granted summary judgment to certain defendants in both actions. Appeals were filed and consolidated.
Issues: (1) Is Bovino’s attorney liable to the real estate agent, Fraser, for legal malpractice? (2) Are Martini and Blessing liable to the Genlaws for failure to file a timely complaint?
Ruling: (1) Bovino’s attorney (Allen), representing an individual who contested the proposed land use application, did not owe Fraser, the broker, even a limited duty of care. (2) Since Martini and Blessing returned the Genlaws’ file to them several weeks before the statute of limitations on their claims expired, their withdrawal from representation did not adversely affect the clients’ interests so as to warrant liability.
Lesson:
- Allen, who was not Fraser’s attorney, but the attorney of his adversary, did not owe Fraser any level of a duty of care so as to make him liable to Fraser under a professional malpractice claim.
- Under New Jersey Rule of Professional Conduct 1.16, Martini and Blessing did not commit malpractice because they (1) did not wait for the statute of limitations to run before withdrawing, and (2) left enough time for the Genlaws to file their complaint within the statute of limitations. That the Genlaws failed to timely file their complaint, was entirely their own negligence, and bore no relation to the decision of Martini and Blessing to withdraw as counsel in a timely manner.
Editor's Note: In all cases, make sure that before withdrawing, there is a reasonable amount of time left for the client to get substitue counsel to file a complaint before the statute of limitations runs. If it's getting close, consider a pro se complaint for the client thus giving the client even more time to get new counsel and thereby preventing the client's claim from becoming time barred. Do what is reasonable to help the client preserve their cause of action if you're not going to continue with representation, at least until they get new counsel.
I think 90 days give a client a sufficient amount of time to find a new lawyer to at least just file a complaint and summons with the court.
I agree, 90 days is sufficient. I also agree with the lesson here, that if the statute of limitations is upcoming in a short time, the attorney should file a pro se complaint. This seems like the ethical thing to do since not filing a pro se complaint may cause the client to lose their entire claim.
Even though 3 months to find another counsel is more than enough reasonable time, it may still be difficult to find a good attorney who would take the case. The other attorneys may be too busy to take the case and we have to realize that people are busy with their days jobs and family life. In addition to the 9o days, I think the attorney who wanted to withdraw from the case should help and recommend other the client find someone else. Finding counsel can be stressful because even though their is an abundance of attorneys out there, experienced, ethical and competent lawyers may be hard to find. A client who has already given all the appropriate documents and facts to the previous attorney are put into this position of starting all over again.
Do you feel that attorney's should be able to withdraw from a case so close to the end of the statue of limitation? I don't think its fair that attorneys can withdraw from cases because they were negligent or just plain lazy. Attorney's should have adequate and good reasons for withdrawing from the case.
Before reading this post I was unaware that an attorney could file a pro se complaint on behalf of their client before they withdrawal their representation. I think this is an extremely useful knowledge for attorneys to have because not only will it insulate them from a potential malpractice claim, by doing so they are zealously representing their client right until the end. Additionally, I agree with the above posts that 90 days seems like a sufficient amount of time to find a new lawyer.
I also agree 90 days is sufficient amount of time for the client to find a new lawyer to bring their claim. I wonder if the lawyers told the client when the statute of limitations would run and the possibility that the client themselves could file a pro se complaint to maintain the cause of action if they were unable to find a lawyer willing to take the case and file it within the 90 days.
I also agree with the court that the attorneys owed their client's adversary no duty of care. The only time attorneys should be liable for a breach of care to their clients' adversaries is when they're deliberately untruthful.
In response to Ms. Saini, while I agree that it may be difficult to find a good attorney within 90 days, filing a pro se complaint on behalf of the attorney will buy the client more time. Im sure we are all well aware of the fact that things move along very very slowly, especially in state court. Filing a pro se complaint would give the client an abundance of time to find a new attorney before any other action is taken in their case.
Absent an attorney leaving a client in a situation where it would not be reasonable for the client to be able to obtain competent representation, the attorney should not be liable for malpractice if the statute of limitations runs. 90 days is definitely a reasonable amount of time in which a client should be able to find an attorney and be able to file a claim. Even 60 days would be a reasonable amount of time, as long as the withdrawing attorney informs the client that there is a running statute of limitations.
What would prove to be difficult to decide is if a withdrawing attorney has reason to believe that the client may have difficulty in obtaining new representation even within the 90 day window, can he still be liable for malpractice if the statute of limitations runs out? For example, if the client was going to be traveling out of the country for an extended period of time, or possibly shipped off in the armed forces and would not have a reasonable opportunity to obtain new counsel. If the attorney had knowledge of these facts before withdrawing, even before the 90 day window, should that give rise to a malpractice claim?
In a perfect situation 90 days should be enough time but there are a lot of reasons why it may not be enought time for a client to find other representation. I think that the attorney should not only be responsible for informing the client of the SOL but should also be required to consider the likilihood that the client will be able to find new representation in the given amount of time; as mentioned by Ryan. Attorneys have or are capable of obtaining a lot of information from their clients lives so a lawyer should have to take into consideration how easily the client will be able to get a new lawyer. However, the standard of ease should not be as simple as the fact that the client just doesn't want to look for a new lawyer.
A 90 day withdrawal deadline may generaly allow sufficient amount of time for the client to file pro se and not lose his or her claim. However, in an instance where taking into account all the issues and hurdles a client will encounter in filing pro se, the attorney knows that it may be difficult for the client to file timely and not lose his claim, the lawyer should not be allowed to withdraw even if it is prior to the 90 days before the statute of limitation will run out.