Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Vang Lee v Mansour, 104 Ark. App. 91 (2008)

AR: Underlying litigation

Student Contributor: Meghan Jean

Facts:  Mansour was one of two attorneys client Vang Lee hired to represent him in a lawsuit. When Attorney #2 (also named Lee)  left for a month-long vacation, he left instruction for Mansour to schedule a pretrial conference between the parties of the suit. Soon afterwards, Attorney #2 became unresponsive to any attempts Mansour made at communication. After several failed attempts, Mansour sent two letters to Attorney #2 informing him that if he did not hear from him, he would have no choice but to request withdrawal from the case. Mansour did not copy Client Lee either letter. When Attorney #2 failed to respond, Mansour requested withdrawal indicating that he and Client Lee did not communicate, that Client Lee would not be prejudiced by his removal because Attorney #2 spoke Client Lee’s native language, and that Attorney #2  was in possession of all necessary paperwork for the case. The court granted the withdrawal. Unfortunately, because Mansour did not inform Client Lee of the withdrawal or Attorney #2's  lack of communication, Client Lee failed to appear at the pretrial conference and a judgment was entered  against him.

Issue: Whether a court’s granting of an attorney’s request for withdrawal from a case precludes the attorney from a malpractice suit on that basis.

Ruling: No.   Arkansas Rule of Civil Procedure 64 provides that an attorney, in his desire to withdraw from a case, must take steps to avoid any foreseeable prejudice to his client, including giving due notice to his client, allowing time for employment of other counsel, and has tendered or stands ready to tender any client papers and unearned fees. Mansour’s failure to communicate the date of the pre-trial conference, and his knowledge that Attorney Lee had become unresponsive to any communication was a foreseeable prejudice to Client Lee. Mansour took no steps to avoid such prejudice.

Lesson: In choosing to withdraw from a case, an attorney must be certain to provide to the client all proof of notification and communicate all issues that might impede or prejudice his case, including that of an unresponsive co-counsel, thereby allowing the client a chance to mitigate his or her damage caused by Attorney #2. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Steinberg v. Schnapp, 2010 NY Slip Op 02991 (1st Dept. April 13, 2010)

Underlying Probate Matter

Facts: Steinberg and Schnapp, both attorneys practicing independently, undertook the representation of another attorney, Borstein. Borstein had retained Steinberg and Schnapp to represent him with respect to “all legal proceedings and asset administration concerning the wills, assets and estate of the late Isi Fischzang”. More specifically, Borstein’s retainer agreement provided that Steinberg was “the general counsel…with respect to all litigation proceedings concerning the wills, assets, and estate”.

Soon after the commencement of the representation, however, Steinberg instituted an action against Schnapp for quantum meruit and interference with an advantageous economic relationship. Essentially, Steinberg alleged that Schnapp fired him to shift the blame for delays in the probate action that upset Borstein.

Issue: Where two attorneys are retained by an executor, one as trial counsel and the other as “Of Counsel”, should “Of Counsel” be permitted to seek his fees from trial counsel?

Ruling: No. The Court resorted to principles of contract law to resolve Steinberg’s claim, and held that the written documents evidenced that Steinberg’s client was the estate, not Schnapp:

In this case Steinberg has sought to recover compensation for his services from a party who did not have any obligation to compensate him – his co-counsel – with whom he was clearly not in privity. There is not even a suggestion that the estate is an undisclosed principal, in which case liability might attach to Schnapp, under time-honored principles.

The Court further held that Steinberg’s claims would fail in any event, since “[a]s a general rule, where there is a contractual relationship between a lawyer and client, the client has the right to terminate the attorney-client relationship at any time with or without cause”:

At best, Steinberg is suggesting that Schnapp made an inaccurate statement about the quality of Steinberg’s work, which statement led Borstein to terminate the attorney relation, a relationship that is terminable at will, in any event. Such statements would be neither tortious nor criminal.

Lesson: An attorney cannot seek compensation for services rendered from co-counsel, even where co-counsel’s representations allegedly led the client to terminate the representation. A client can terminate the attorney-client relationship at will. The attorney can seek to recover compensation for his services only from his former client.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Ingemi v Pelino & Lentz  866 F. Supp. 156 (D.N.J. 1994)

NJ Underlying Action-Claim for pension benefits

Student Contributor: Candice L. Deaner

Facts: Plaintiff instituted a malpractice suit against related New Jersey and Pennsylvania law firms due to their mishandling of the underlying litigation. Plaintiff specified her desire to have a New Jersey attorney and the New Jersey law firm was retained as local counsel. They then petitioned the court to admit pro hac vice two lawyers from the Pennsylvania firm. The New Jersey firm argued that one of the Pennsylvania lawyers was the only one to give advice and act “on the judgmental and strategic issues,” and contended that the New Jersey firm served “merely” as local counsel, performed ministerial tasks, and undertook “discovery and motion practice in a manner that did not require making judgments or giving advice regarding prejudgment remedies or settlements,” and therefore was not liable in this action.

Issue: What is the role of local counsel when pro hac attorneys are admitted to handle the case?

Ruling: The Court found that the New Jersey firm “underestimated the role of local counsel” and stated that “by virtue of submitting the pro hac vice application, the New Jersey firm was responsible for the ‘conduct of the cause.’” Local court rules “require local counsel to take more than a de minimis role in the representation,” and clearly indicate “that local counsel is the counsel of record with attendant responsibilities, not out-of-state counsel admitted pro hac vice.”

The Court held that

“Local counsel must also supervise the conduct of pro hac vice attorneys and must appear before the court in all proceedings. Even if pro hac vice attorneys attempt to delegate solely routine or ministerial tasks to local counsel, local counsel remains counsel of record and wittingly or unwittingly exposes itself to liability for penalties such as sanctions.”

Lesson: A law firm retained as local counsel has equal responsibility even though other counsel is actually handling the prosecution of the case. ,  Liability is not delegated to the pro hac vice attorneys. Local counsel must continue to supervise the pro hac vice attorneys and appear in court. A law firm cannot avoid liability by claiming that other counsel was primary. The responsibility still lies with the local counsel to supervise and handle the case.

Editor's Note: For other cases holding local counsel potentially liable  for malpractice to client, see also:. Ortiz v. Barrett, 278 S.E.2d 833, 838 (Va. 1981);  Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121 (N.D. Ohio 1990); Neel v. Magana, Olney et al., 98 Cal. Rptr. 837, 491 P.2d 421 (1971); Wildermann v. Wachtell, 267 N.Y.S. 840, 841 (1933), affirmed, 271 N.Y.S. 954 (1934). 

• Email This
• Print
• Comments (6)
• Trackbacks
• Share Link